The American University in Cairo

The American University in Cairo
School of Global Affairs and Public Policy
EDUCATION IN THE SYRIAN GOLAN HEIGHTS UNDER
INTERNATIONAL HUMAN RIGHTS LAW
AND INTERNATIONAL HUMANITARIAN LAW
A Thesis Submitted to the
Department of Law
in partial fulfillment of the requirements for the degree of
Master of Arts in International Human Rights Law
By
Michelle Strucke
June 2012
The American University in Cairo
School of Global Affairs and Public Policy
EDUCATION IN THE SYRIAN GOLAN HEIGHTS UNDER INTERNATIONAL
HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW
A Thesis Submitted by
Michelle Strucke
to the Department of Law
June 2012
in partial fulfillment of the requirements for the degree of
Master of Arts in International Human Rights Law
has been approved by
Professor Hani Sayed _______________________________
Thesis Adviser
American University in Cairo
Date __________
Professor Nesrine Badawi _______________________________
Thesis First Reader
American University in Cairo
Date __________
Professor Thomas Skouteris _______________________________
Thesis Second Reader
American University in Cairo
Date ___________________
Professor Thomas Skouteris _______________________________
Law Department Chair
American University in Cairo
Date ___________________
Ambassador Nabil Fahmy _______________________________
Dean of GAPP
Date ____________________
ii
DEDICATION
To my husband Zaki Barzinji, without whom I may not have found my voice, and to my
mother Laurie Strucke, without whom I would not have learned how to use it.
iii
ACKNOWLEDGEMENTS
In completing this work, I benefited from the advice and encouragement of countless
people. Notably, Professor Hani Sayed and Professor Elna Sondergaard, whose
encouragement and lucid advice helped me reach further depths in this topic. I received
valuable advice from Sital Kalantry of Cornell Law School about the right to education,
and from the students in the Cornell Research Colloquium, whose insightful comments
assisted me greatly while editing. I received support from the faculty and students of the
Department of Law at the American University in Cairo, who provided a stimulating
environment for creative legal thinking, and gave me the support to present this research
at an international conference in Austria. I would like to especially thank Professors
Tanya Monforte, Alejandro Lorite Escorihuela, Thomas Skouteris, and Diana Van
Bogaert, for all of their encouragement and insight – they have truly changed the way I
think about law and the world. I benefitted deeply from the perspectives of Dr. Martin
Isleem and Dr. Munir Fakhereldin and am indebted to them for offering me their
expertise regarding the Druze in Israel and the residents of the Syrian Golan. I am deeply
grateful to the staff of Al-Marsad including Nizar Ayoub, Naief Fakhereldeen, and
Salman Fakereldin, for their hospitality and support over the summer of 2008, and for
making me feel at home among the people of the Syrian Golan, especially from the
village of Majdal Shams. And I have been deeply touched and inspired by their warmth,
friendship, hospitality, and inspirational responses, especially their artistic responses, to a
difficult political situation. In particular, I wanted to thank Jad Mari, Eyad Abu Saleh,
and all others who generously offered me their friendship. I wanted to thank Daanish
Faruqi, Kerry, Khulood, Gissella Montenegro, Allison Silver, Lindsey Humphreys, and
everyone else who spent countless hours offering their counsel and advice throughout the
process of research and writing, and for their friendship across oceans. I am thankful to
Dr. Peyi Soyinka-Airewele of Ithaca College for first stimulating my interest in education
and conflict and in the state’s role in attempting to shape citizens’ identities. I wanted to
thank my family for supporting me throughout the course of this project, especially Ann,
Krista, Bill, and my parents Laurie and Bill, and to Afeefa Syeed, Najeeba Syeed, Esa
Syeed, and Nafeesa Syeed, for valuable discussions around educational curricula within
conflict zones and for peacebuilding, and on writing around conflict. I wish to thank Dr.
Sayyid Syeed, Rafia Syeed, Suhaib Barzinji, and Afeefa Syeed for their hospitality,
inspiration, and encouragement. I am deeply grateful to Dina Mansour for her advice,
encouragement every step of the way, friendship, and for going out of her way to ensure
my thesis was delivered, even when I was halfway around the world. Finally, I want to
thank Zaki Barzinji for reading countless versions of my drafts, for his encouragement
from beginning to end, and for his endless love, patience, tranquility, and curiosity. I
could not have done this without him. All errors are my own.
iv
The American University in Cairo
School of Global Affairs and Public Policy
Department of Law
EDUCATION IN THE SYRIAN GOLAN HEIGHTS UNDER INTERNATIONAL
HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW
Michelle Strucke
Supervised by Professor Hani Sayed
ABSTRACT
Compulsory education, in particular history and religious education, is often used by
states as a critical tool of nation building, as states attempt to socialize and shape the
attitudes and beliefs of citizens in line with their strategic aims. As a state that defines
itself as "Jewish and democratic" and that has instituted special compulsory education
curricula for students on the basis of ethnicity and religion, the state of Israel is no
exception. The Syrian Golan despite being under occupation by Israel for the last fortyfive years has been written about only sparingly compared to the overwhelming amount
of research that has been performed on the Occupied Palestinian Territories. The Druze
residents of the Occupied Syrian Golan are subject to a separate compulsory education
curriculum designed and implemented by the state of Israel that attempts to shape their
identity in religious terms that reflect Israel's strategic aims at the expense of accurately
depicting the history and heritage of the Syrian Golan and its residents. It attempts to
obscure their identity as Syrian Arabs entirely, focusing instead on a narrative of
historical similarity and alliance of Druze and Jews and their common persecution by
Muslims. And most importantly, it is the same curriculum that Israel has created for its
own citizens, highlighting a fundamental problem in Israel’s denial that it occupies the
Syrian Golan. The problem in the Syrian Golan is not simply that the residents receive a
separate education on the basis of religious and ethnic difference. It is not simply that the
residents are left without the option of choosing an alternative education for their children
that respects their origins. It is that the abuse of the principle of non-annexation has
fundamental consequences for the human dignity of the affected residents, and negative
implications on the international legal system upon which the principle is based. This
study undertakes to analyze the problem of education in the occupied Golan in relation to
norms of IHRL and IHL and to propose reconciliation between these conflicting norms to
the extent that it is possible. It will focus primarily on Israel’s obligations under the
ICESCR, CRC, CADE, and key international humanitarian agreements including the
Fourth Geneva Convention and the Hague Regulations in the context of belligerent
occupation. And finally, it will briefly analyze the problematic legal consequences of
Israel’s conduct in relation to the residents of the Syrian Golan, and the international
legal system.
v
LIST OF ABBREVIATIONS
CADE
CESCR
CDCE
CRC
DMZ
ECOSOC
GAA
GC
GHL
HR
HCJ
HRC
ICRC
ICJ
ICCPR
ICC
ICESCR
ICERD
ILC
IDF
ISMAC
IHL
IHRL
JAG
LOAC
LMD
OHCHR
OPT
OSG
AP1
SC
UDHR
UNICEF
UN
UNDOF
UNESCO
UNGA
UNRWA
Near East
US
WWI
WWII
Convention on the Elimination of Discrimination in Education (UNESCO)
Committee on Economic, Social and Cultural Rights
Committee for Druze Culture and Education
Convention on the Rights of the Child
Demilitarized Zone
United Nations Economic and Social Council
General Armistice Agreement
Geneva Conventions
Golan Heights Law [1981]
Hague Regulations
High Court of Justice (Israel)
Human Rights Committee
International Committee of the Red Cross
International Court of Justice
International Covenant on Civil and Political Rights [1966]
International Criminal Court
International Covenant on Economic, Social and Cultural Rights [1966]
International Convention on the Elimination of All Forms of Racial
Discrimination
International Law Commission
Israel Defense Forces
Israel-Syria Mixed Armistice Commission
International Humanitarian Law
International Human Rights Law
Judge Advocate General (US)
Law of Armed Conflict(s)
Lejnat al-Mubadarah al-Durziya (Druze Initiative Committee)
Office of the High Commissioner for Human Rights (UN)
Occupied Palestinian Territories
Occupied Syrian Golan
Protocol I Additional to the Geneva Conventions
Security Council
Universal Declaration on Human Rights [1948]
United Nations Children’s Fund
United Nations
United Nations Disengagement Observer Force
United Nations Education, Scientific and Cultural Organization
United Nations General Assembly
United Nations Relief and Works Agency for Palestine Refugees in the
United States of America
World War I
World War II
vi
PREFACE
Throughout this manuscript, identity will be discussed often, and as such it is appropriate
to define how these identity-related terms are used and why they were chosen.
Druze
The origins of the name Druze are disputed. Many historians claim that it originated from
a figure known as the first Druze apostate, al-Darazi who was an early convert who
outsiders perceived to be the founder of the new religious movement. His so-called
followers therefore became Druzes (Duruz), although today the word “Darazi” is still
used as a modern epithet, implying that the person is a heretic.1 The term is said to have
gained prominence because of its use by those who attempted to defame the community,
although its usage has become acceptable over time to describe adherents to the religion.
Authentic Druze manuscripts however do not use the term “Druze” or “Druzes” and such
terms are still rejected by some members of the community. The Druze prefer to refer to
themselves as “Unitarians,” or Muwwahhidun in Arabic, and sometimes as People of
Tawhid or Ahl al-Tawhid.
Due to the term’s prominence and common usage among the Druze with which the
author is acquainted, the term Druze will be used throughout this article, and is not
intended to mean any disrespect to the adherents of the faith.
1
SAMY SWAYD, HISTORICAL DICTIONARY OF THE DRUZES xxii (2006).
vii
“We don’t need no education.
We don’t need no thought control.
No dark sarcasm in the classroom.
Teacher, leave those kids alone.
Hey, teachers! Leave those kids alone.”
-Pink Floyd
“Careful the tale you tell…
That is the spell.
Children will listen.”
-Stephen Sondheim
viii
TABLE OF CONTENTS
I. Introduction ………………………......................................................................... 1
II. History of the Syrian Golan …………………………………………………….. 4
A. The Druze in Israel and the Residents of the Syrian Golan ……………. 9
1. Occupation and Annexation …………………………………....... 11
2. Application of the Israeli Education System ……………………. 15
B. State of Education in the Syrian Golan …………………………………. 23
1. Allocation of Resources and Administrative Decisions………..... 23
2. Content of Druze Heritage Curriculum .…………………………. 25
3. Content of Arabic-Language and Hebrew-Language Curricula … 28
4. Non-State-Sponsored Educational Initiatives ………………......
31
5. Competing National Histories as a Security Risk ……………….. 32
D. Special Factors Affecting the Syrian Golan ……………………………. 32
1. Status of Peace Negotiations………………..…………………….. 33
2. Comparatively Privileged Position ……………………………….. 34
III. Legal Analysis of Violations…………………………………………………… 35
A. The Problem of the Conflict of Laws and their Application ……………. 35
1. Israel’s Position on Occupation, Annexation and Laws ………… 36
2. Relationship between IHL and IHRL …………………………… 48
3. Legal Status of the Syrian Golan ………………………………... 58
B. The Problem of Education in an Occupied Territory (IHL) …………….. 64
1. Characteristics of Occupation Law ……………………………… 67
2. Education under IHL and Belligerent Occupation ……………… 72
C. Education under IHRL …………………………………………………... 82
D. Complementarity of IHL vs. IHRL Protection of Education ………….. 100
E. Violations of IHL and IHRL Related to Education in the Syrian Golan… 106
IV. Conclusion ……….………………………………………………………….….. 115
ix
Introduction
Compulsory education, in particular history and religious education, is often used by
states as a critical tool of nation building, as states attempt to socialize and shape the
attitudes and beliefs of citizens in line with their strategic aims. As a state that defines
itself as "Jewish and democratic"2 and that has instituted special compulsory education
curricula for students on the basis of ethnicity and religion, the state of Israel is no
exception. As will be shown, the Syrian residents of the Occupied Syrian Golan3 who
have lived under Israeli occupation since 1967 and annexation since 1981 are subject to a
separate compulsory education curriculum designed and implemented by the state of
Israel that attempts to shape their identity in religious terms that reflect Israel's strategic
aims.4 This has raised concerns that it does so at the expense of accurately depicting the
history and heritage of the Syrian Golan and its residents, who define themselves almost
without exception as Syrian, Arab and Druze.5 The curriculum, in contrast with the
2
The Declaration declares the establishment of a “Jewish state in the land of Eretz-Israel [Land of Israel in
Hebrew] to be known as the State of Israel” and does not explicitly mention democratic governance. See
Declaration of Establishment of the State of Israel, 5708-1948, 1 LSI 3-5 (1948) (Isr.), available [in
English, Hebrew and Arabic] at
www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declaration+of+Establishment+of+St
ate+of+Israel.htm (also known as “The Declaration of Independence”). The democratic character of the
state was legislated in A Basic Law provides that anyone negating “the existence of the State of Israel as a
Jewish and democratic state” will not have the right to take part in elections to the Knesset. Basic Law: The
Knesset (Amendment No. 35), 2002, S.H. 158 (Isr.). See generally Nathan Lerner, Religious Liberty in the
State of Israel, 21 EMORY INT’L L. R. 239-276 (2007) (discussing the meaning of Israel being a Jewish and
democratic state). See also Orit Ichilov, Gavriel Salomon & Dan Inbar, Citizenship Education in Israel – a
Jewish-Democratic State, in ISRAELI INSTITUTIONS AT THE CROSSROADS 29, 29 (Raphael Cohen-Almagor
ed., 2005) (discussing the Jewish, democratic character of the state in relation to civic education).
3
Occupied Syrian Golan, Syrian Golan, and Syrian Golan Heights will be used interchangeably hereinafter.
4
See generally Kais M. Firro, Reshaping Druze Particularism in Israel, 30 J. PALESTINE STUD. 40-53
(2001).
5
Based upon fieldwork conducted by the author throughout the summer of 2008. Some residents described
themselves as Israeli and had accepted Israeli citizenship, but the overwhelming majority described
themselves as Syrian, Arab and Druze. One Christian family lived in the occupied village of Majdal
Shams, but all others defined themselves as members of the Druze religious sect. See also Tayseer Mara’i
and Usama R. Halabi, Life Under Occupation in the Golan Heights, 22 J. PALESTINE STUD. 78-93 (1992). It
should also be noted that some Druze commentators in Israel, particularly prominent Israeli Druze (not
from the Golan), have debated the notion that the Druze are Arab. See SALMAN FALAH, THE DRUZE IN THE
MIDDLE EAST 1 (1992) (“It is interesting to note that the question of origin did not trouble the Druzes in the
past; but with the spread of Arab nationalism, claims were made that the Druzes were of pure Arabic
descent, a view opposed by many Druzes in Israel today, including public figures, who maintain that the
Druzes are not Arabs. The Israeli authorities recognize them as a separate people, and their identity cards
list them as belonging to the Druze nationality.”).
Palestinian Arab6 curriculum in Israel, which has been charged with simultaneously
racializing and demonizing Arabs,7 has raised concerns that it attempts to obscure their
identity as Syrian Arabs, focusing instead on a narrative of historical similarity and
alliance of Druze and Jews, and their common historical persecution by Muslims.
Separate education on the basis of religious and ethnic difference is a complex subject
educationally speaking, and raises questions about its compatibility with Israel's human
rights obligations including the right to non-discrimination and the right to education as
defined under the International Covenant on Economic, Social and Cultural Rights, the
Convention on the Rights of the Child, the Convention on the Elimination of
Discrimination in Education, and other relevant treaties to which Israel is party. In
particular, educational curricula that is factually inaccurate and said to marginalize the
identity and history of the residents it describes seems to rise to the level of a violation of
the ICESCR, the CRC, and the CADE, among other international human rights treaties to
which Israel is party. Israel is also bound by the laws of belligerent occupation, since the
Syrian Golan enjoys protected status under IHL, sometimes referred to as the
International Law of Armed Conflict. Educational institutions are protected places under
the law of belligerent occupation, and IHL regards protecting children and maintaining
continuity with the heritage, religion, language, and national identity of their parents with
special concern. The curriculum and educational institutions in the Syrian Golan will
therefore be analyzed against the backdrop of Israel’s humanitarian obligations as an
Occupant, and against state practice in this area.
6
The term “Palestinian Arab” has been chosen based upon the preferences of the Palestinian Arabs
interviewed by Human Rights Watch researcher Zama Coursen-Neff in her 2004 study on discrimination
against Palestinian Arab children in Israeli schools. Official government sources in Israel usually refer to
Palestinian Arabs as “Israeli Arabs,” however this term has become highly politicized and was rejected by
most of those interviewed. For explanation see Zama Coursen-Neff, Discrimination against Palestinian
Arab children in the Israeli Educational System, 36 INT’L. L. AND POL. 749 (2004).
7
See generally Ismael Abu-Saad, Present Absentees: The Arab School Curriculum in Israel as a Tool for
De-educating Indigenous Palestinians, 7.1 HLS (2008) [hereinafter Present Absentees]; see also Ismael
Abu-Saad, Separate and Unequal: the Role of the State Educational System in Maintaining the
Subordination of Israel’s Palestinian Arab Citizens, 10 SOC IDENTITIES 1 (2004) [hereinafter Separate and
Unequal]; see also ISRAEL: DISCRIMINATION AGAINST PALESTINIAN ARAB CHILDREN IN ISRAEL’S SCHOOLS
(Human Rights Watch, Children’s Rights Division) (2002) [hereinafter HRW Report on Discrimination in
Israel’s Schools]; see also Janan Abdu, Official School Curricula: Tool in Israel’s Hand to Obliterate
Palestinian Identity in the 1948 Areas, available (in English) [hereinafter: Official School Curricula] at
http://www.jai-pal.org/pie/education%20in%20areas%20of%2048%20_English_.pdf (original in Arabic).
2
The Syrian Golan, despite being under occupation by Israel for the last forty-five
years, has been written about only sparingly compared to the overwhelming amount of
research that has been performed on the Occupied Palestinian Territories. This paper
aims to contribute to the increasing body of international legal analyses of disputed
territories and to raise visibility for neglected issues within the Syrian Golan by outlining
the violation of these important legal standards through the use of preliminary field work
from the Syrian Golan, including the analysis of supplementary educational tools
designed by the residents themselves. It also raises questions about the limitations of the
IHRL and IHL approaches to evaluating education systems in occupied territories,
especially in relation to balancing the quality of educational content with the specific
exigencies of a minority population under prolonged belligerent occupation.
Special attention will be paid to Israel’s concerns related to security, since these are at
the heart of any discussion of its actions in relation to the territories it occupies, and in
relation to the Arab minority in the state and the territories under Israel’s control.
Identity is a highly politicized topic in Israel, and one that carries significance in relation
to its international and domestic security. Of note will also be the limitations and
problems with the security approach to maintaining and creating identity speaces within
education, particularly as they concern an occupied population and Israel’s obligations
under IHL and IHRL.
It should be noted that the education system in the Occupied Syrian Golan is but one
component of the larger picture of what one resident of Majdal Shams, a professor of
post-colonial Middle East history, terms “ethnic engineering” that Israel has propagated
in the Occupied Syrian Golan, separating Jew from Druze, re-imagining the Golan
community and land through a complex web of social and economic policies, and
creating a new reality that has fundamentally altered the geographic, social and economic
landscape of the territory.8 This research note will show that these actions, specifically in
the educational system, are contrary to international human rights law and have had
lasting negative effects on the Syrian residents subject to Israel’s effective control and
occupation.
8
Interview with Dr. Munir Fakhereldin, in Majdal Shams (Aug. 2008).
3
The paper is organized as follows: first, a brief history of the Druze in Israel and the
history of the Occupied Syrian Golan since its occupation by Israel in 1967 and Israel’s
annexation of the territory in 1981, followed by an exploration of the competing
interactions of state aims vis a vis employing education as a tool of nation-building
within the modern nation state with an occupant’s obligations related to education under
the laws of war. It then provides an overview of the educational curricula in the
Occupied Syrian Golan, taking note of the significance of nationalist rhetoric in the
curriculum and what is known about Israel’s objectives in its creation and
implementation. Finally, it briefly analyzes the curriculum with respect to Israel’s
obligations under International Humanitarian and International Human Rights Law,
related specifically to the right to education as outlined by the treaties to which Israel is
party and the relevant authoritative interpretations of those treaties. It analyzes the right
to education under these two legal contexts and analyzes Israel’s obligations, taking into
account both Israel’s position on the applicability of the two bodies of law and the
changing international legal norms of occupation. It concludes that some of the
curricular content and the administration of the schools is inappropriate and harmful to
the children subject to the curriculum in the Occupied Syrian Golan, thus violating
Israel’s obligations under International Human Rights Law and International
Humanitarian Law.
History of the Syrian Golan
Several characteristics of the Occupied Syrian Golan should be noted prior to discussing
the education system. Chief among them is the physical makeup of the area, a
characteristic that has played a large role in both Israel and Syria’s claims to sovereignty
over the territory. The villages of the Occupied Syrian Golan are cramped into the top
corner of the fertile, volcanic plateau, which rises up to 2,224 meters above sea level.9
The OSG boasts rich soil situated at varying altitudes, rendering it capable of growing a
9
The highest point of the Occupied Syrian Golan is Mount Hermon (Jabal Al-Shaykh). See DR. RAY
MURPHY & DECLAN GANNON, CHANGING THE LANDSCAPE: ISRAEL’S GROSS VIOLATIONS OF
INTERNATIONAL LAW IN THE OCCUPIED SYRIAN GOLAN (Al-Marsad Arab Centre for Human Rights in the
Occupied Golan) (2008). For an extensive discussion of the topography of the Golan, see ELISHA EFRAT,
THE GOLAN HEIGHTS: OCCUPATION, ANNEXATION, NEGOTIATION 16-28 (Shoshana Michael-Zucker trans.,
ABC Publisher) (2009).
4
diverse array of crops including mangoes, bananas, avocados, grapes, cherries, and the
apples for which the Syrian Golan is recently famous. Further, it contains water from the
headwaters of the Jordan River and at its border lies Lake Tiberias, which currently
provides up to one third of Israel’s total fresh water.10 Since the displacement of the
Syrian residents that had previously lived throughout the Syrian Golan and the
destruction of their villages and farms, the five remaining villages in the Syrian Golan are
in relative isolation from other developed areas with the exception of several Israeli
settlements, built in contravention of international law, including the closest settlement to
Majdal Shams, Neve Ativ. Public transportation is scarce,11 and the closest town in Israel
proper to the Syrian Golan villages, Kiryat Shemona, is about thirty minutes away by car.
Access to Syria and Lebanon are prohibited,12 and the area around the Druze villages is
replete with landmines, fenced off only by barbed wire and danger signs. Roads in the
area reportedly primarily serve security and military functions, and the function of
serving the Israeli settlements.13
Prior to its capture by Israel, the region that is now the Syrian Golan had a long
history of settlement by a diverse array of peoples from the Middle East region including
Jews, Muslim Arabs, Byzantine Christians, Bedouin, Circassians, Turkmen, and others.
The region is mentioned in the Bible as Golan, named after the town Golan, by Greeks
and Romans as “Gaulanitis,” and by Arabs as “Jaulan” meaning ‘wandering’ or
‘migration’ due to its agricultural history.14 In modern times, Israeli archeologists have
researched the history of Jewish settlement of what is in present day the Syrian Golan,
dating back more than three thousand years, and have mapped out sites of synagogues
and even reconstructed one in the illegal Israeli settlement of Katzrin.15 Non-Druze Arab
10
Murphy, supra note 9, at 15. Water is also cited as a priority for both Israel and Syria in claming
sovereignty over the territory.
11
This is in stark contrast with the variety of public transport options accessible from the largest illegal
settlement in the Golan, Katzrin (alternately spelled Qazrin).
12
There are a few exceptions to this rule. The exceptions are governed by special agreements between
Israel and Syria, mediated by the UN Peacekeeping Forces [hereinafter: UNDOF], in which authorized
individuals or crops can travel across the border under special circumstances.
13
Efrat, supra note 9, at 38.
14
Efrat, supra note 9 at 28-32. These claims are often pointed out by those wishing to establish an
historical, Biblical connection of Israel with the Syrian Golan. Those who are pro-Syrian who wish to
establish a firmer connection to the Syrian Golan often refer to the residents of the Syrian Golan as the
“native inhabitants” or “indigenous residents.”
15
Efrat, supra note 9 at 29-31.
5
settlement began in the early seventh century C.E., and from the 13th to 16th centuries was
part of the Damascus district. During Ottoman rule in the 19th and early 20th centuries, the
inhabitants of the Syrian Golan were primarily nomadic Bedouin.16 Afterward, Muslim
Circassians banished from the Ottoman empire, Turkmen, and Arab farmers who had
migrated from parts of the present-day Palestinian territories in the West Bank settled the
land.17 Settlement of the Syrian Golan by Druze Arabs was said to have begun in the late
17th century when fighting between Muslim and Druze Arabs forced the Druze Arabs to
emigrate from the Galilee to the area that is now the Syrian Golan. They were later
joined by Druze Arabs from present-day Lebanon and the Galilee, who joined their
settlements around what is now the village of Majdal Shams.18
Control over the Syrian Golan in modern times has largely been subject to the will of
colonial powers. Zionist interest in the area and other parts of Syria were asserted early
as the late 19th century when land southeast of the Syrian Golan was purchased and
temporarily settled by Jewish families.19 The only official border agreement that
explicitly mentions the Syrian Golan territory during World War I was the Sykes-Picot
agreement regarding what was to become of the Ottoman Empire’s land, concluded
between France, England, Italy and Russia. The 1916 agreement divided the territory
that is now Israel and the Syrian Golan into four parts, with the Syrian Golan making up
part of the northernmost part, to be controlled by France.20 Although the Sykes-Picot
agreement fell through after Russia and Italy pulled out, Britain retained control of all of
the territory and decided to respect France’s claims to the territory and ceded control of
Syria to France.21 Britain and France took twelve years to demarcate the actual borders of
the Syrian Golan and the decision on the borders was ultimately up to them.22 As noted
however,
…prior to the demarcation of new national borders and the establishment of British
and French mandates over Syria, Lebanon, Palestine, Trans-Jordan, and Iraq, the
16
Efrat, supra note 9 at 30.
Id. at 32.
18
Id. at 33.
19
Id. at 39-40.
20
Id. at 40.
21
Id.
22
Id. at 45.
17
6
Golan was part of the area that Zionists hoped to colonize and control23… In 1919,
the Zionist leader Chaim Weizmann rejected the Sykes-Picot agreement, the
British-French arrangement to divide the Arab east among them, on the grounds
that the Golan Heights came under French control as part of their mandate over
Syria.24
In 1920, the Zionists ultimately withdrew their demand for the Syrian Golan in
exchange for gaining territory in the Galilee.25 This later became the basis for some
Israelis’ claim that the Syrian Golan was “ripped away from the Land of Israel.”26 The
French controlled Syria, including the Syrian Golan, until Syria gained its independence
in 1946 – in part due to the anti-colonial, resistance efforts of many in the Syrian Golan
villages in which many inhabitants of the territory lost their lives and entire Syrian Golan
villages were wiped out.27 Between 1949 and 1967, the border between Israel and Syria
was governed under an armistice regime according to ceasefire agreement signed in July
1949, although both Israel and Syria violated the agreement throughout its tenure,
escalating tensions that led up to the 1967 war.28 As part of this agreement, the UN
created a Demilitarized Zone (DMZ) in parts of the territory that did not correspond to
the international boundary between what the agreement calls Syria and Palestine, which
would be negotiated pending territorial settlement between the parties, but importantly,
23
S. FAKHR EL-DIN, TWENTY YEARS OF ISRAELI OCCUPATION OF THE SYRIAN GOLAN HEIGHTS (1993), as
cited in Efrat, supra note 9 at 42.
24
Efrat, supra note 9 at 43.
25
Id. at 44-45.
26
Id. at 45. (“[V]ery few of the claims raised during the discussions were based on reasons rooted in the
past. In fact, only the representatives of the Zionist movement made historically-based claims but these
were not the official reasons. The Golan’s Jewish history was not presented during the negotiations and it
was not claimed that the Golan was part of the patriarchal inheritance. Although, the British and French
dealt extensively with historical claims regarding other border sectors, they did not consider historical
factors when dealing with the Golan.”). See also G. BIGER, THE POLITICAL DELIMITATION OF THE GOLAN
HEIGHTS DURING THE MANDATE PERIOD 1918-1948 (1993), as cited in Efrat, supra note 9 at 45,
(discussing the officially demarcated lines of the Golan border, “…the final border of the Golan Heights is
an artificial line along its entire length; it is not based on conspicuous landscape features… it seems that the
territory itself was of no particular importance to the parties and it may be that they were not even familiar
with it. It was the lines themselves that were important to the parties, the railroad tracks, the drainage
canal, the irrigation channel, etc. and the adjacent land needed to secure them. The need for these lines
effectively determined borders in the Golan Heights unlike other areas of the Land of Israel with
negotiations focused on demands for territory and not for lines.”)
27
Efrat, supra note 9 at 47-48.
28
Id. at 49.
7
over which no country was sovereign.29 Nevertheless, in direct violation of the terms of
the armistice agreement, Israel maintained that it had sovereign claim to the territory and
ceased attending required meetings with the UN body governing the armistice agreement,
the Israel-Syria Mixed Armistice Commission (ISMAC).30 Both parties took actions
intended to increase their claim over the territories within the demilitarized zone, with
Israel amassing control over two thirds of the demilitarized area, and Syria one third.31
Over the course of the 17-year armistice agreement, the UN Secretary General remarked
that Syria and Israel had submitted no less than 66,000 complaints about one another.32
A key issue in the disputes over the demilitarized territory was access to water
resources.33 Other disputes centered around development of the demilitarized territories,
military and police action within the DMZ, whether the international frontier borders or
the armistice lines would be ultimately recognized as the permanent borders between
Israel and Syria, efforts to claim sovereignty over parts of the territory, and disputes over
the legal authority of ISMAC.34 Although the two states had periods of cooperation and
diplomatic pragmatism during this period, their disagreements over the armistice regime
devolved into violent escalations and led to a deterioration of relations between the two
parties that ultimately led up to the 1967 war.35
Over six days in June 1967, as Jordan and Egypt fought Israel, Syria invaded
Israeli territory and used the strategic position of the Syrian Golan Heights as a base from
which to attack northern Israeli settlements even after Egypt and Jordan ceased fighting.36
On the fifth day, Israel retaliated against Syria, advancing up the Syrian Golan Heights
plateau and seizing the territory from Syria, moving 48 kilometers (30 miles) into Syria.37
29
Efrat, supra note 9 at 52. According to the agreement, the armistice line was “not to be interpreted as
having any relation whatsoever to ultimate territorial arrangements,” General Armistice Agreement, July
20, 1949, Isr.-Syria, 42 V.N.T.S. 327, Art. 5 [hereinafter Israel-Syria Armistice Agreement].
30
The Chief of Staff of the UN Supervising Organization in Palestine, Report on the Israel-Syria Armistice
Agreement, ¶ 6, delivered to the Secretary-General, U.N. Doc. S/3353 (Jan. 11, 1955).
31
M. Brawer, Israel’s Boundaries: Past, Present and Future, a Study in Political Geography (1988) as cited
in Efrat, supra note 9 at 62. For a summary of Israel and Syria’s positions, see id., at 64.
32
Most of these complaints were disputes over the demilitarized zone. Efrat, supra note 9 at 58.
33
For a detailed discussion of Israel and Syria’s disputes over water resources during the armistice regime,
see Efrat, supra note 9 at 62.
34
Efrat, supra note 9 at 62.
35
Id. at 74.
36
Id. at 80.
37
Id. at 80.
8
A ceasefire was declared on June 10, 1967 at the request of the Syrians.38 The fallout of
the war was summed up well by the following:
In the Six-Day-War, Israel accomplished the expansionist aims that the pre-state
diplomatic efforts and previous wars had failed to achieve. The war was a
devastating blow for the Arab regimes. With the conquest of the West Bank and
the Gaza Strip the remainder of Palestine came under Israeli control, Syria
suffered the loss of 1,250 square kilometers (500 square miles) of its Quneitra
province, including the provincial capital city Quneitra and the Golan Heights.
Israel could not carry out a mass expulsion of the Palestinian population of the
West Bank and Gaza Strip in 1967, but it repeated the expulsion tactics it had
used against Palestinians in 1948 against inhabitants of the Golan. Israeli
Minister of Defense Moshe Dayan ordered his troops to expel the population of
the Golan. After the war, all that remained of two cities, 132 villages and 61
farms were six villages: Majdal Shams, Massa’ada, Boq’ata, Ein Qiniya, Rhajar
[sic] and S’heita. All of the others had been destroyed.39
While some of the territory including Quneitra was ultimately returned to Syria
through the separation of forces agreement in 1974 after the October war (also called the
Yom Kippur war) in 1973, the villages that had been in that territory were razed by
Israeli forces immediately following the 1967 war.40 And “only in a few places does any
evidence of their existence remain.”41
The Druze in Israel and the Syrian Golan
The Druze in Israel comprise about 2% of the total Druze who exist mainly in the Middle
East.42 They are ethnically Arab members of a secretive religious sect sometimes
characterized as heretical that broke off of Ismaili Islam in 1018 A.D. when the Egyptian
ruler Halif Hakim pronounced that he was the embodiment of God, and forbid the
exercise of all other religions.43 In Israel they reside primarily in the mountains of the
Galilee, although a significant population also resides in the Occupied Syrian Golan
38
Id. at 80.
Id. at 82.
40
Efrat, supra note 9 at 85 (discussing the razing of the villages after their populations were expelled).
41
Efrat, supra note 9 at 85.
42
P. HITTI, THE ORIGINS OF THE DRUZE PEOPLE AND RELIGION (1966) as cited in Shmuel Shamai, Critical
Sociology of Education Theory in Practice: the Druze Education in the Golan, 11:4 BRIT. J. SOC. OF EDUC.
452 (1990).
43
Hitti in Shamai, supra note 42.
39
9
(OSG) in the foothills of Mt. Hermon (Jabal Al-Shaykh).44 They have been characterized
by scholars as one of the most misunderstood communities in the Middle East,45 and
history and current affairs are replete with inaccuracies when it comes to information
pertaining to the Druze.46 One of the primary reasons cited for the confusion surrounding
the Druze is their commitment to secrecy:
Druzes have often been misunderstood by outsiders because of their esoteric
religious doctrine, the secretive nature that such a doctrine has instilled in them,
and the variety of perspectives or divisions prevalent among members of the
community. As a result, misconceptions have taken root, multiplied, and
flourished with time. Druzes themselves, on the other hand, have not countered
misconceptions about their community; rather, they have developed or
reinforced attitudes of isolationism, secrecy, and indifference. This is perhaps
due to the fact that only a select few among them are initiated into the Druze
religious doctrine. More important, these initiated members are often unwilling
to comment on the authenticity of the Druze manuscripts and later commentaries
simply because most of them are not well versed with such clandestine matters.
Those who are knowledgeable, however, feel that true faith resides in the hearts
of individual seekers and not in the written word. Thus, spirituality and spiritual
readiness comes from within.47
While the Druze are frequently characterized as one ethno-religious community,
particularly in Israeli official rhetoric and policy which will be addressed in this paper,
they are by no means a monolithic community. Distinctions between the adherents of the
Druze sect who reside in the Syrian Golan and the Druze in the Israeli Galilee will
frequently be drawn in this study, although within those communities as well, all
members do not always agree. In general, pro-Syrian Druze in the Syrian Golan
preferred to be referred to by their national and ethnic identities as Syrian Arabs, as
opposed to the pro-Israeli Druze in the Galilee, who are frequently referred to as Israeli
Druze. Although all are of Arab heritage and all are of the Druze religious sect, the
various political histories and disparate positions have informed the different
communities’ preferences for what they should be called.
44
According to one account, the Druze began to settle in the foothills of Mount Hermon beginning after the
sixteenth century. Hitti in Shamai, supra note 42. Contra. Efrat, supra note 9 at 33 (arguing that while the
Druze elders speak of their settlement before the 17th century, there is no historical evidence from the
period of Fakhr a-Din to prove this claim, or otherwise, and so their settlement began in the late 17th
century in the Golan).
45
Supra note 1 at xi, see also Jon Woronoff, Editor’s Note, in id. at ix.
46
Supra note 1 at xi.
47
Supra note 1 at xxxi.
10
Occupation and Annexation of the Syrian Golan
The OSG has been under Israeli control since its capture in the war of 1967,48 after
which it was annexed by Israel in 1981 in contravention of the UN Charter through the
passage of the Ramat Hagolan49 Law or the “Golan Heights Law” which declared that
Israel henceforth had full administrative and legal control over the Syrian Golan.50 This
law also replaced Israeli military administration over the territory with civil
administration. Under unusual political circumstances, the legislation was passed by the
Knesset (or Israeli Parliament) within a matter of hours of its introduction, and caused an
immediate reprimand from the United Nations’ Security Council, the Arab League, and
the United States in addition to other nations and international organizations.51 In
contrast with the usual legislative practice, the law took effect on the same day it was
passed.52 As will be discussed in more detail later, because International Humanitarian
Law prohibits the acquisition of territory by force, the move was interpreted as an
effective annexation (which is referred to as a de facto annexation since it is a legal fact
despite Israel’s refusal to term it an annexation) and is illegal under international law53
and as such has been condemned by the United Nations and most nations of the world.54
48
Immediately after its capture in 1967, Israel took measures interpreted as expressing its intention to keep
the Golan, including immediately canceling the Syrian educational curriculum and instituting immediate
military rule as opposed to administering the territories with a series of military orders as they did in the
Occupied Palestinian Territories. Further, after only one month, they established their first settlement in
the Occupied Syrian Golan, Mershom Golan. See Bashar Tarabieh, The Untold Story of Suffering and
Endurance: The Syrian Community on the Golan Heights, 33:2 THE LINK 3-4 (Apr. - May 2000).
49
Ramat Hagolan is the Hebrew name for the Golan Heights.
50
Ramat Hagolan Law, 5742-1981, 36 L.S.I. 7 (1981) (Isr.). [hereinafter: The Golan Heights Law] at 6.
51
The circumstances are reported in numerous historical accounts of the 1981 events. See, e.g., Leon
Sheleff, Application of Israeli Law to the Golan Heights is Not Annexation, 20 BROOK. J. INT’L. L. 334
(1993-1993) (“The three readings took place on December 14, 1981, with the opening session at 5:22 P.M.
and the vote on the third reading taking place less than six hours later at 11:15 P.M. The following day, the
law was formally promulgated. The law was passed in this manner at the behest of the then-Prime Minister
Menachem Begin at a time when he could take the opposition by surprise. Begin had just left the hospital
after a brief stay, and the leading opposition figures, Shimon Peres and Yitzehak Rabin, were out of the
country.”).
52
Efrat, supra note 9, at 113.
53
The unilateral annexation of a territory is illegal according to customary law derived from the principle in
International Humanitarian Law that occupation should be temporary, see A. Roberts, Transformative
Military Occupation: Applying the Laws of War and Human Rights, 100 AM. J. INT’L. L. 580 (2006), as
cited in Murphy, supra note 9, at 35.
54
Numerous United Nations resolutions have documented the illegality of the Israeli occupation of the
Syrian Golan, e.g., S.C. Res. 242, U.N. SCOR, 22d Sess., 1382d mtg. at 8, U.N. Doc. S/ INF/22/Rev.2
(1967) (calling for the withdrawal of Israeli armed forces from the territories occupied in the 1967 war,
11
No country formally recognized the annexation when it occurred.55 However, many
Israelis, as well as the Israeli government, consider the “Golan Heights”56 part of Israel.57
The Druze are the only Syrians remaining in the OSG because the only six
villages in the Syrian Golan that were almost entirely comprised of Druze were spared in
the 1967 war58 when the over 100,000 other residents (about 95% of the total Syrian
Golan population) residing in 163 villages and 108 farms59 were forcibly expelled,60
including the Syrian Golan). The United Nations Security Council, General Assembly and Economic and
Social Council have all declared Israel’s decision to impose its laws, jurisdiction and administration on the
occupied territories without legal effect (null and void) under international law. See, e.g., id., S.C. Res. 338,
U.N. SCOR, 28th Sess., 1747th mtg. at 10. U.N. Doc. S/ INF/29 (1973), S/RES/497 (1981); U.N. Doc.
A/RES/61/27 (Dec. 1, 2006) and U.N. Doc. A/RES/61/118 (Dec. 14, 2006); ECOSOC 6309 U.N. Doc.
E/2007/L.19 (2007) as cited in UN Information Service, Economic and Social Council adopts texts on
Palestinian people, Independence for colonial countries, social development (2007) available at
http://www.un.org/News/Press/docs/2007/ecosoc6309.doc.htm [hereinafter UN Information Service,
Resolutions Condemning Syrian Golan Annexation].
55
Efrat, supra note 9 at 114.
56
“Golan Heights” typically refers to the portion of the Syrian Golan that was occupied beginning in 1967,
see Murphy, supra note 9, at 9.
57
See Website of the Israel Ministry of Foreign Affairs available at
<www.mfa.gov.il/MFA/History/Early%20History%20-%20Archaeology/Katzrin%20%20A%20Village%20in%20the%20Golan> (arguing that the Golan contains some of the state of Israel’s
premier archeological and natural sites, including the “ancient Jewish village of Katztrin”, containing the
remains of an ancient synagogue that existed in a [Syrian] Golan village). More accurately, Katzrin is an
illegal settlement town, constructed by Israel in modern times around the remains of the synagogue wall
that was found after the occupation of the Syrian Golan. See also Israel Nature and National Parks
Protection Authority Website for information on the Gamla Nature Reserve in the [Occupied Syrian] Golan
which also contains the remains (excavated after the occupation of the Syrian Golan) available at
<www.parks.org.il/ParksENG/company_card.php3?CNumber=508481>. No mention is made in these
official sources of the Syrian Golan as being anything other than a part of Israel.
58
These villages included Majdal Shams (the largest by far), Buqa’ayta, Masadda, ‘Ayn Qinea, S’hita, and
Ghajar (also written sometimes as Rajar). The villages with the exception of Ghajar (which overlapped
with the Lebanese border) existed within a few kilometers of each other near the ceasefire lines. All were
almost entirely Druze except for Ghajar, which was mainly Alowite. See Mara’i, supra note 5, at 79. Many
historians allege that the Druze were spared at least in part based upon what turned out to be the mistaken
assumption by Zionist forces that the Druze of the Syrian Golan, like their brethren in the Galilee, would
ally themselves with the state of Israel. Id. at 80. Another explanation is that the elders who remembered
when members of their village fled during the fighting of the Great Syrian Revolt in 1925-27 who returned
to find their village of Majdal Shams destroyed took great pains up to and including physical intervention
to ensure that villagers did not leave during the fighting in 1967. Id. See also Shay Fogelman, The
Disinherited: What Happened to the 130,000 Syrian Citizens Living in the Golan Heights in June 1967?,
Haaretz, July 30, 2010 (describing recently declassified documents that demonstrate that the Druze were
spared as a matter of IDF policy. Elad Peled, formerly Commander of the IDF’s 36th division during the
1967 war, spoke about the policy in a recently declassified report: “Peled recalls there was a clear policy
determined by the IDF high command - "and it must have come down from the political echelon" - not to
harm the Druze and Circassian villages. “For numerous reasons, the state had an interest in keeping them
there," he says, although he does not remember what the policy was in regard to other inhabitants”).
59
Sakr Abu Fakhr, Voices from the Golan, 29:4 J. Palestine Stud. 5-36 (Autumn 2000).
60
Fogelman, supra note 58 (pointing out that many prominent Israeli officials disputed the claim that the
Syrians were forcibly expelled, stating that they fled, and this account of the history of the Syrian Golan
has appeared in Israeli textbooks, official documents, and reports by Israeli officials to the United Nations
12
fleeing mainly to Syria.61 At the time of the foundation of the state of Israel in 1948, the
Syrian Golan was a recognized part of Syria, under Syrian sovereignty,62 and the only
Israeli Druze were those of the Galilee and other parts of Israel (mainly in the north).
The Galilee Druze resided in villages of a primarily traditional nature, led by Druze
elders in a strict politico-religious hierarchy. During the 1948 War, which many Israelis
refer to as the War of Independence, Druze elders allied themselves politically with the
Zionist forces,63 leading to the establishment of such close ties with Israel that the Galilee
Druze are the only non-Jewish minority to be compulsorily conscripted into the Israeli
Defense Forces.64 The relationship between the Galilee Druze and the Zionists was
viewed through a lens of historical friendship and religious parallels,65 as both Jews and
when confronted with claims that the population was forcibly expelled, and demonstrating that in personal
accounts, Golan residents and soldiers who were present at the time contested this narrative, providing
evidence that not only were the residents expelled, but many of those who attempted to return to their
homes were arrested and then forcibly expelled before their villages were razed.).
61
Supra note 59. The other villages were comprised of Syrians of a diverse array of ethnic and religious
descents, including Circassians, Alowite, Christians and Muslims who had coexisted together peacefully
for ages including with Jews who had lived beside them in ancient times before the formation of the state of
Israel. The concentrations were as follows: 13,500 Circassians were concentrated mainly in Qunaytra and
the villages of al-Mansura, al-Adnaniyya, al-Qahtaniyya, ‘Ayn Ziwan, al-Ghassaniyya, al-Juwwayza, Bir
‘Ajam, al-Burayqa, al-Khushniyya, al-Faham, Fazara, Ruwayhina, and al-Faraj; Turkomans consisted of 4
percent of the population and were concentrated in the villages of Hafar, Kafr Nafakha, al-Sindiyana, alRazzaniyya, al-Ghadiriyya, al-Husayniyya, al-‘Ulayqa, al-Mughir, al-Dabiya, N’aran, Dayr al-Rahib, alAhmadiyya, ‘Ayn al-Simsim, ‘Ayn ‘Aysha, al-Juwwayza, and al-Mumsiyya; Kurds and Armenians in
Qunaytra; Maghribis in the villages of ‘Abdin and M’arraba, and 10,000 Palestinian refugees particularly in
the Butayha region. Id.
62
Michelle Strucke, Field Observations in village of Majdal Shams, Syrian Golan Heights (Summer 2008)
[hereinafter Fieldwork]. Many Syrian nationalist vestiges remain in the Occupied Syrian Golan, including
statues of Syrian nationalist figures from the Syrian Revolution in 1921. Id.
63
Supra note 4. See also Mara’i, supra note 5 (discussing consequences of the “Palestinian Druze” (or
Galilee Druze)-Alliance with Zionist authorities on Palestinian-Golan Druze-relations).
64
Supra note 4 (arguing that other members of religious minorities attempted to voluntarily conscript into
the Israeli Defense Forces including Sunni Muslims and Christians, but none were granted approval to sign
up). See id. (discussing the Druze compulsory conscription through the passage of the compulsory
conscription act on 3 May 1956). See generally Martin Isleem, Colloquial Arabic as a Policy Tool: the
Case of the Druze Heritage Curriculum in Israel (2009) (unpublished manuscript, on file with author)
(discussing the Palestinian reaction to the Druze conscription into the IDF, for example that Palestinians
and Arabs perceived this as a “stabbing in the back”).
65
Laila Parsons, The Druze and the Birth of Israel, in The War for Palestine 60–70 (2007). See Falah,
supra note 5, (describing the common understanding Jews have with the Druze and their sympathies when
it comes to minority issues and the dangers of assimilation, “There is the [Druze] fear of assimilation
within the Israeli society and the Arab culture… Feeding these voices [calling for taking educational
action], too, is the feeling that an improvement has taken place in the status of the Druzes in Israel because
of their good relations with Jews and their contribution to the state. And, indeed, an attentive ear has been
found amongst the Jewish public, which as a minority in its Diaspora understands the Druzes’ deep feelings
infighting against the trends of inter-ethnic mixing and assimilation.”).
13
Druze had been persecuted minorities66 in “closed” religions that seldom, if ever,
accepted new adherents.67
Both groups, according to this narrative, could also constitute a “nationality” or an
“ethno-religious community,” since both prohibit or discourage intermarriage, leading
some to characterize their adherents as members of a distinct ethnic group. In the Druze
sect, intermarriage was prohibited, and converts were not accepted into the sect under any
circumstances. Over time, this led to the ethnic isolation of the Druze, since they on the
whole were not intermixing with members of any other ethnic groups. The Syrians of the
OSG prefer to be called Arab in light of their Arab ethnicity, and Syrian due to their
nationality. They do not consider being Druze a distinct ethnicity, but as being a member
of a religious sect.
The alliance between the Galilee Druze and the Zionists led to a strong
nationalistic presence of Israeli (Galilee) Druze in the armed services and in Israel as a
whole, gaining them protection as a special minority and the establishment of a special,
separate educational sector governed by the Israeli Ministry of Education, Culture and
Sport, based upon Druze history as understood by the Zionists at the time of the alliance.
It however has been applied to the residents of the Syrian Golan despite stark political
differences between the two groups, including the major difference that the residents of
the Syrian Golan are living under occupation and have overwhelmingly refused the offer
of Israeli citizenship given them (or to many, unsuccessfully forced upon them) by
Israel.68 Residents of the Syrian Golan, including those who are Druze, do not serve in
the Israeli military, nor for the most part are they citizens of Israel.69 Rather, their
66
The Druze have suffered almost constant persecution since their founding and as a result have declared
much of their sacred text secret to only some elite members of their religion. See generally Hitti in Shamai,
supra note 42. See also supra note 1 at xxxi (discussing the Druze sect’s strict hierarchy of the initiated and
uninitiated into the religion, “Unlike the early sages of Christianity, who were the ones to study the Bible
and transmit its meaning to congregations, Druze sages have studied their scriptures and kept the spiritual
knowledge to themselves; insights were shared only with one’s spiritual equals. In the eyes of these sages,
not all people are prepared to absorb spirituality”). For a more lengthy discussion of the initiated and
uninitiated in the Druze community, see id. at p. xxxv – xxxvii.
67
The degree of “closedness” of the Druze sect is stricter than that of the Jews. The Druze have not
accepted any converts since 1056 A.D., while many Jewish denominations accept a very limited number of
converts every year. See generally Hitti in Shamai, supra note 42 (discussing the origins of the Druze
religion and the closing of the gates of the religion).
68
Mara’i, supra note 5, at 83-84.
69
Some residents of the Syrian Golan have accepted Israel’s offer of citizenship, although for doing so they
have been ostracized and excommunicated by the Syrian Golan community. The decision to
14
nationality status is “undefined” (the same political status in Israel as the Palestinians in
the Occupied Palestinian Territories, although the residents of the Syrian Golan typically
enjoy freedom of movement throughout all of Israel70) and Israel considers them
permanent residents. Most have outwardly resisted the control of their territory and
education system by Israel since its occupation in 1967 and its illegal annexation of the
territory in 1981.71 Citizenship and identity have played a major role in the context of
this resistance. According to one history of the annexation of the Syrian Golan, the
residents of the OSG continue to claim, “Our war with Israeli [sic] is conducted on three
primary levels: identity, land and water. Even after all the years of Israeli occupation and
annexation, we have remained Syrians.”72
Application of the Israeli Education System
Education is compulsory in Israel from kindergarten up until the twelfth grade, as of 2007
when the Compulsory Education Law of 1949 (that had been last amended in 1978 to
extend to students up to tenth grade) was amended again, expanding the requirement
from tenth grade to twelfth grade.73 The Israeli public education system is divided into
several sectors that critics claim are at worst discriminatory, and proponents claim are at
best reflective of the heterogeneity and multiculturalism of the Israeli populace. Israeli
public education is divided into three sectors on the basis of religion and ethnicity, one
excommunicate those accepting Israeli citizenship, banning them from weddings, funerals, and all social
and religious events and even from dealing with other community members was made at a general meeting
called by the Syrian Golan’s Druze elders in March 1981 that was attended by over 6,000 residents. See
Mara’i, supra note 5, at 83. Cf. Efrat, supra note 9, at 121 (noting the text of the public declaration, “Every
person in the occupied Syrian Golan Heights who dares to replace his Syrian citizenship with Israeli
citizenship is harming our dignity, national honor, religion and traditions, and he will be ostracized from
community life and excommunicated from our religion. All others will be forbidden from having any
relations with such a person,”).
70
While the residents of the OSG enjoy freedom of movement throughout Israel and for the most part, the
OPT (excluding Gaza), they are granted only extremely limited freedom of movement to Syria and denied
travel to other Arab states which do not accept travel from anyone carrying Israeli travel documents (this
includes nearly all the Arab states except for Egypt and Jordan, which have peace agreements with Israel).
71
Mara’i, supra note 5, at 83-84. This resistance included a general strike that lasted uninterrupted for over
five months. During the strike, Israeli forces blockaded the town of Majdal Shams, not even allowing in
food or medical supplies from the International Red Cross, as residents resorted to building their own
sewage system and to taking other measures to resist Israel’s attempts to force them to accept Israeli
citizenship. Id. See also Efrat, supra note 9, at 121 (describing the general strike).
72
Efrat, supra note 9, at 124.
73
Compulsory Education Law, 5709–1949, 3 LSI 125 (1949) (Isr.), as amended by Compulsory Education
Law Amendment No. 7, 2007, and Compulsory Education Law Amendment No. 11, 1978. See also
Amendment No. 5, 1969, as cited in Falah, supra note 5.
15
Jewish, one Arab, and one Druze. The Jewish sector is divided into a State-secular
education system and State-religious education sector.74 The Druze sector used to be a
part of the Arab sector, but was divided into two during what scholar of Israeli Druze
relations Kais Firro calls the attempt to create Druze “particularism” in Israel.75 Firro
claims that an Israeli policy of ‘“divide and sub-divide’ - or ‘divide and rule’ – was… in
place and focused primarily on the Druzes.” The policy, according to Firro, aimed at
“weaning them away from the larger Palestinian Arab community by fostering ‘Druze
particularism, the notion that Druze ethnicity and identity make them distinct from other
Arabs.’”76
The official aims of education in the Druze sector of Israel are:
[T]o base education on Druze and Arab cultural values, as well as on the values of
achievements in science, and the attainment of peace between Israel and its
neighbors. The love of the homeland is common to all its citizens, and thus the
Druze are loyal to the State of Israel, and cooperate in the building and running of
the state. Druze education aims to emphasize the special as well as the common
interests of all citizens, the special ties between Jews and Druze; an understanding
of Jewish culture; the development of an Israel-Druze entity; the firm
establishment of Druze youth in the culture of the community; and the common
destiny of all Druze communities in all their lands.77
The Israeli authorities achieved success in this policy at least with the Galilee Druze.
By legally designating them a separate religio-ethnic group, and replacing the word
“Arab” on their national ID cards with “Druze” under “nationality”, in addition to other
74
See generally MINISTRY OF EDUCATION, CULTURE AND SPORT, FACTS AND FIGURES: BASIC
EDUCATIONAL CURRICULUM OF ISRAEL 2004 (Isr.), Dalia Sprinzak, et. al., (Yedida Segev ed., Sagir
International Translations, Inc. trans.) [hereinafter Israel Educational Curriculum] available at
http://planipolis.iiep.unesco.org/upload/Israel/Israel%20Facts%20and%20figures.pdf
75
Firro uses the term particularism to denote the sectarian identity that many ethno-religious communities
in the pre-modern era held prior to their adoption of the notion of nationalism. Supra note 4.
76
Supra note 4. See also State papers of the Foreign Ministry /2402/28, Letter from Dr. H. Hirschberg to
Palmon, (Oct. 18, 1949) (Isr.) (on file with Israel State Archives, Jerusalem) as cited in Lina Kassem, PhD
Dissertation, The Construction of Druze Ethnicity: Druze in Israel between State Policy and Palestinian
Arab Nationalism, (2005) (unpublished Ph.D. dissertation, University of Cincinnati) (on file with author) at
120 (discussing Hirschberg’s recommendations on how to best integrate the Arab, non-Jewish population
in Israel to an inter-ministerial committee of the Israeli government shortly after the founding of the state of
Israel, in which he concluded that the most important task was to ensure that the Arab groups did not form
a single Arab minority and suggested the creation of a separate Druze educational curriculum).
77
Falah, supra note 5, as cited in Randa Abbas, Druze Education in Israel, (Ph.D. Dissertation, Western
Galilee College) (Abstract) available at http://www.wgalil.ac.il/files/AbstracRandaAbbas.pdf.
16
official measures,78 the Israeli authorities capitalized on their early political alliance and
succeeded in creating the image of a distinct and separate ethnic group, if not “nation”
aligned strategically and historically with Jews.
By some accounts, particularly by Galilee Druze working actively with the Israeli
government, these distinctions were necessary and in fact called for by members of the
Druze communities of the Galilee. Salman Falah, formerly the appointed coordinator of
the earliest directors-general committee in Israel for Druze affairs in 1975, and later
serving as Director of Druze Education in the Ministry of Education and then deputy
director general, was one such voice. According to his influential narrative, the Galilee
Druze called for educational action and other means of publicly strengthening Druze
identity because they were afraid of assimilation within Israeli society and within Arab
culture, and yearned for “special ethnic expression that was precluded during the
Ottoman and British Mandatory periods”.79 By his account, the government of Israel
responded to these voices, creating new policies “to cultivate the ethnic and cultural
uniqueness of the Druzes.”80 For example, on June 1, 1975, in Resolution 702, the
government decided to separate Druze matters from the Arab ministries and handle them
separately.81 And Falah was chosen to be coordinator of the implementing committee for
Druze affairs.82
According to Falah, the government was responding to the recommendations of two
earlier committees it created – one public and one legislative, through the Knesset – to
explore the causes of Druze “bitterness and demonstration”83 during that time period, and
“to chart new ways of improving relations between the Druzes and the state of Israel.”
78
Other measures included a lack of recognition of Eid el-Fitr (a Muslim holiday) among the Druze, the
politicization of Druze shrines, and most notably the compulsory conscription of Druze into the Army via
the ‘Minorities Unit’. See Israel State Archives, FM 2570/11, Letter from Ya’acov Shim’oni, Official of the
Foreign Ministry of Israel, to E. Sasson (Aug. 16, 1948) (Isr.) (on file with Israel State Archives,
Jerusalem) as cited in supra note 4 at 42 (discussing Shim’oni having “freely admitted that the
establishment of the Minorities Unit contributed little or nothing to the Israeli army- its true purpose was to
use the Druzes as ‘the sharp blade of a knife to stab in the back of Arab unity.’”).
79
Falah, supra note 5, at 141.
80
Falah, supra note 5, at 141.
81
Falah, supra note 5, at 141.
82
Falah, supra note 5, at 141.
83
The bitterness and demonstration he referred to most likely referenced the protests by Druze, Arab
intellectuals at the time, particularly those involved with the Druze Initiative Committee (LMD), which was
founded in 1972. The protests organized by this committee were cited as one of the factors that spurred the
creation of the two Israeli-government committees to study problems with the Druze minority. Kassem,
supra note 76, at 121-122.
17
Both ultimately recommended removing Druze affairs from the stewardship of the Arab
departments,84 and both emphasized youth issues, particularly education.85 The
committee headed by Haifa University’s Dr. Gabriel Ben-Dor,
saw an urgent need to strengthen Druze consciousness through developing a
special curriculum for the Druze schools. It expressed concern that Druze children
did not gain familiarity with the history of their people, tradition, or religion. The
committee also expressed its belief that with the introduction of a curriculum in
these areas, the feelings of frustration stemming from problems of identity would
disappear.86
In their report, the Committee stated:
The committee believes that the state of Israel has underestimated the necessity of
the education for the Israeli-Druze consciousness and that [the state] has done little
to educate and inculcate the Druze youth with Israeli-Druze consciousness. This
has done damage to the state and its image. When the compulsory conscription’s
law was applied on the whole Druze community, the state should have realized it
needed also to encourage the intellectuals, to develop the foundation of IsraeliDruze consciousness as an ideological- cognitive basis that could provide Druze
youth with a logical explanation of and psychological background to his complete
identification with the state and his readiness to fight for its cause, and to preserve
meanwhile his Druze particularity. The committee believes that the present
curriculum in the Druze schools and the way of imparting it to the Druze child and
teenager does not contribute to the deepening of Druze-Jewish
brotherhood...preparing an independent Druze curriculum with its own texts is of
crucial significance, and will serve the continuation of the community’s
particularist existence.87
By other accounts, the recommendations to establish a separate Druze educational
curriculum began as far back as 1949, shortly after the foundation of the state of Israel,
and originated not in Druze voices, but in Jewish voices from within or closely related to
the Israeli government. In 1949, an inter-ministerial committee of the Israeli government
requested Dr. H. Hirshberg’s recommendations on how to best integrate the Arab, nonJewish population in Israel into the new state. Hirshberg concluded that the most
important task was to ensure that the Arab groups did not form a single Arab minority
that would “be Arab in its national identify [sic] and Muslim in its religion.” He believed
84
Falah, supra note 5, at 210.
Id. One committee presented recommendations in December 1974 and the other in May 1975.
86
Falah, supra note 5, at 142.
87
Knesset Report, quoted in KAIS M. FIRRO, THE DRUZES IN THE JEWISH STATE (1999) 227 as cited in
Kassem, supra note 76, at 123.
85
18
that education would be the most effective tool with which to divide the Arab populace,
advocating for the creation of separate schools for different Arab minorities, and for the
creation of a separate Druze educational curriculum.88
Whatever their original origins, the discussions surrounding developing special Druze
curricula stopped short of advocating for teaching the Druze religion to Druze pupils in
school. It was suggested, since out of all of the religions represented in the Israeli
education system, only Druze do not learn their religion as a matter of formal study, but
the Druze spiritual leadership rejected it outright. Falah speculated as to their reasons:
The opposition of the spiritual leadership to religious studies emanates from the
principle of secrecy of the Druze religion, which principle is a red line not to be
crossed. Possibly, too, there was a fear that in time a plutocratic religion might
develop; also, that by granting the ministry proposal, the Druze leadership would be
inviting a foreign body to intervene in matters of their religion.89
According to Falah, however, many of the fears of the spiritual leaders were allayed
once the textbooks , were introduced for the “revolutionary innovation,”90 the new Druze
heritage curriculum.91 He claimed that they found the textbooks actually preserved
heritage and brought youth closer to their religion, drawing on subjects as diverse as
Druze religious law, history, folk literature, dance, and music.92 Falah dismissed critics
of the policy separating Druze from Arab as mainly leftists and nationalists who protested
for ideological reasons.93 However, some of those critics, including members of the
Lejnat al-Mubadarah al-Durziya (Druze Initiative Committee or LMD), which was
opposed to the policy of creating a distinct Druze identity, reported not just with
sweeping critiques of the texts, but with lists of the specific factual errors in the
government’s new Druze textbooks, particularly related to history.94 For example, they
criticized the new textbooks for including geographical regions in the reverse of their
actual order.95 And in the Galilee, some teachers refused to teach the Druze heritage
88
Supra Letter from Dr. Hirschberg, as cited in Kassem, supra note 76, at 120.
Falah, supra note 5, at 142.
90
Falah, supra note 5, at 144.
91
Falah, supra note 5, at 143.
92
Falah, supra note 5, at 143.
93
Falah, supra note 5, at 143.
94
Galeb Saif, Druze Initiative Committee, Al Zytoonah (Jan. 1992) at 23, (providing specific examples of
errors about the history of the Druze people published in several government authors’ textbooks that were
utilized in teaching history in Druze schools) as cited in Kassem, supra note 76, at 123.
95
Saif in Kassem, id.
89
19
components of the curriculum, and the lessons had to be taught by conscripted and
uniformed Druze soldiers for the IDF.96
The three educational sectors each contain their own section on heritage and/or
culture. However, in line with what critics term Israel’s “divide-and-rule” policy, only
the Arab and Druze sections are mutually exclusive. Jewish heritage is infused
throughout the entire Israeli curriculum, including in civic education, history, and social
studies, despite comprising an additional separate section taught only in the two sections
of the Jewish sector. This is because a stated aim of the curriculum is to “foster Zionist
values and instill cultural heritage.”97
The “cultural” heritage of the Druze and the Arabs are taught only in their respective
sectors. Although Druze are Arab, it was seen as essential by scholar Haim Blanc who
was later minister of Arab Affairs, to define the Druze as a separate nation, distinct from
Arabs and particularly Muslims.98 Blanc, when asked if the Druze were Arab, had the
following to say:
As it stands [this question is] unanswerable, since the term “Arabs” is used
loosely to cover a multitude of meanings… In a cultural sense, however, the
Druzes are not only “Arabs” but, as it were, “Arabs with a vengeance”… The
distinctiveness of the Druzes is nevertheless undoubted, and its origins must be
sought in their religion. [The community] was born and grew in a hostile
environment; it therefore adopted the principle of taqiyya, a sort of protective
coloring with religious affiliations, to be “Christian with the Christians, and
Muslim with Muslims”… The most recent instance of this outward assimilation
may be seen in present-day Israel.99
Many Israelis mistakenly characterized taqiyya as a uniquely Druze characteristic,
though it in reality derives from Shi’i Islam,100 and a preoccupation with the quality is
reflected in the Druze curriculum, exemplifying just one of the type of
96
Interview with Dr. Martin Isleem (April 12, 2012).
Israel Educational Curriculum, supra note 74.
98
Falah, supra note 5, at 143 (discussing the opposition to this policy, who were either “spiritual leaders,
who feared that it would lead to a disclosure of the secrecy of their religion; and nationalists and leftists,
who saw in the study of Druze heritage a separation of the Druzes from the Arabs and a strengthening of
the Druze identity,” noting that once the curriculum surfaced, however, the spiritual leaders became
supporters of the policy.).
99
Haim Blanc, Druze Particularism: Modern Aspects of an Old Problem, 3 MIDDLE EASTERN AFFAIRS
Nov. 1952, 315-21 as cited in supra note 4, at 47.
100
Taqiyya translates to “prudence” and “carefulness” and derives from a practice in Shi’i Islam of
protecting one’s inner faith by allowing oneself to adopt Sunni Muslim practices. It is therefore not unique
to the Druze and in fact is the same concept used by ‘Alawi and Ismai’li’s to protect their faith in the same
manner. Supra note 4, at 47-48.
97
20
mischaracterizations and factual errors with which the curriculum is charged.101 Another
was the selective reading of history that ignores the many Galilee Druze who participated
in the Arab Revolt of 1936-1939, and focuses instead exclusively on those Druze who
were pro-Zionist. Critics interpreted this as an attempt by Israeli authorities to generalize
all Druze as naturally exhibiting a love for Jews based on their similar histories of
persecution.102 And the presentation of Druze as a “non-Muslim minority with an
endemic animosity toward the Muslim majority”103 was another example of potentially
harmful errors within the curriculum – one that did not encourage friendly relations
between Arab Muslims and Arab Druze.
The Arab sector in Israel has been the subject of much criticism, as it is said to
racialize indigenous Palestinian Arabs and present them in an Orientalist light as
primitive and backward.104 It has been the focus of debates beginning before the
founding of the state that continue to this day about textbooks, curricula, and Israel’s
objectives vis a vis its Arab minority.105 Further, the unequal distribution of funding
relative to the number of students in the Arab sector resulted in underdevelopment of the
101
Falah, supra note 5, at 2 (“As long as the Druzes remain a minority in the Middle East, it seems that the
question of their origins and identity will remain a subject for disagreement. The various claims made to
their Arabism or their separate status are usually for political reasons, or in order to protect their uniqueness
and their very existence. This is quite acceptable to the Druzes, since a basic principle of faith, the
“Taqqiya,” explicitly commands identification with the people among whom they live in order to protect
themselves from persecution. The Druzes, therefore, even today continue to celebrate some of the Moslem
festivals (i.e., the al-Adha Feast [Sacrifice]) and perform marriage ceremonies and burial services
according to Moslem traditions. By following these customs, the Druzes are able to avoid revealing the
basics of their own faith, which are kept secret and are in fact unknown to the majority of Druzes
themselves.”).
102
Lisa Hajjar, Making Identity Policy: Israel’s Interventions Among the Druze, 200 MIDDLE EAST
REPORT, MINORITIES IN THE MIDDLE EAST: POWER AND THE POLITICS OF DIFFERENCE, Jul.-Sep. 1996, at 3.
103
Id.
104
See generally Present Absentees, supra note 7; see also Separate and Unequal, supra note 7; see also
Coursen-Neff, supra note 6 at 749; see also HRW Report on Discrimination in Israel’s Schools, supra note
7; see also Official School Curricula, supra note 7.
105
The Israeli Ministry of Education approved a high school civics textbook called “Taking the Civil Road”
in 2011, but recently banned it due to what officials termed factual inaccuracies and what critics called its
‘unbalanced’ portrayal of Arab history and politics. The textbook stated that Palestinian Arabs did not just
flee from the newly created state of Israel in 1948, but were forcibly expelled, puts much of the blame for
poor relations between Arabs and the state on the state itself due to its lack of integration of Arab symbols
or identity into the national identity, and calls for a constitution to protect minority rights in Israel. The
issue was important enough to merit calling an emergency session of the Education Committee of the
Israeli Parliament, the Knesset, to discuss banning the book. See Ben Lynfield, Israel bans a textbook
promoting Arab rights as ‘unbalanced’, CHRISTIAN SCIENCE MONITOR, April 23, 2012, available at
http://www.csmonitor.com/World/Middle-East/2012/0423/Israel-bans-a-textbook-promoting-Arab-rightsas-unbalanced
21
educational system in Arab areas, reinforcing negative stereotypes about Palestinian
Arabs. Similar problems plagued the Druze sector upon its creation in 1976, from a
shortage of school buildings, classrooms and equipment to a staff of mostly unqualified
teachers.106 In fact, in 1975, “almost no school buildings were erected in the Druze
sector.”107 As will be shown, evidence of these two trends also exists in the education
system in the Occupied Syrian Golan. Problems with the Arab sector’s handling of
Druze issues in Israel was cited as one of the reasons why the Druze should be separated
from the Arab sector.108
The Druze education sector, established by the Committee for Druze Culture and
Education within the five years following the 1975 committee recommendations on
Druze education,109 lagged noticeably behind the two Jewish education sectors, and the
Israeli government did not formally commit to raising the level of services in the sector to
the level in the Jewish sectors until 1987.110 While the law requiring compulsory
education for all students had been in effect since 1949, requiring students to attend
school at least until eighth grade, it was implemented only gradually for girls in the Druze
sector, leading to the enrollment of 90% of girls by 1979-80 and 97% by 1986-87.111
Some such as Falah have characterized the Druze and Arab sectors’ inequality from
the Jewish sectors’ as an inevitable result of the differing periods of time for which they
have existed. For example, the Jewish system existed several decades before the
establishment of the state of Israel, the Arab system for over 60 years, and the Druze
system for over 30 years. “This means that the point of departure of the three systems is
not equal, and that the gap that had been created over the course of the decades, both in
the physical conditions and pedagogic needs, could not be avoided.”112 Immediately after
making this claim, however, Falah contradicted himself by noting that the Druze sector in
106
Falah, supra note 5, at 210, 225. (reporting that up to 60% of teachers in the Druze sector in 1976 were
unqualified, problems that were also common to the Arab sector).
107
Id., at 228.
108
Id., at 210. Some such as the members of one local council (Daliat al-Carmel) even argued for changing
the primary instruction for Druze in Israel from Arabic to Hebrew.
109
Id., at 211.
110
Id., at 214.
111
CENTRAL BUREAU OF STATISTICS, STATISTICAL ABSTRACT OF ISRAEL NO. 38 (1987) as cited in Falah,
supra note 5, at 214. This was around the same time that Syria reported to the United Nations that it had
increased female enrollment in schools to those or higher levels.
112
Falah, supra note 5, at 210.
22
its first twenty years already was approaching the levels of the Jewish sectors and had
already surpassed the level in the “non-Jewish systems”113 (presumably the Arab sector).
This seems to suggest that the Druze sector may have developed more effectively and
rapidly than the Arab sector due to factors other than just the inevitable passage of time,
such as differential planning or funding by the state of Israel.
The curriculum in the Syrian Golan and the specific exigencies of Syrian Golan
relations will be discussed next in order to provide background for the ensuing evaluation
of Israel’s implementation of the right to education in the Occupied Syrian Golan.
State of Education in the Syrian Golan
Two major problem areas exist in the educational system in the Occupied Syrian Golan
that broadly parallel the problems in the Arab sector.114 The first is related to the
allocation of resources and administrative decisions. The second relates to the
educational content of the curriculum. After discussing these obstacles to the realization
of the right to education in the Occupied Syrian Golan, a discussion of the residents’
efforts to provide supplemental education will ensue.
Allocation of resources and administrative decisions
According to scholarly reports, resources were unequally allocated to the educational
institutions in the Occupied Syrian Golan, so much so that residents often had to pay out
of pocket to establish programs guaranteed elsewhere. Kindergartens for instance were
for the most part (with the exception of a public kindergarten provided in one village) not
provided for residents until they took it upon themselves to pay for their establishment,
and after doing so the schools were forcibly closed by the Israeli authorities.115
During the period of Syrian rule over the Syrian Golan, educational expenses such as
the cost of textbooks, school overhead, and “everything except pens and notebooks” were
113
Falah, supra note 5, at 210.
Education in the Arab sector has been found to be discriminatory according to several studies including
most notably Coursen-Neff, supra note 6.
115
Shamai, supra note 42 (noting that after closing the local Syrian kindergartens, the Israeli authorities
also closed the public kindergarten).
114
23
provided free to residents by the Syrian government.116 However after two years of
maintaining this policy, the Israeli authorities began to charge for textbooks as well as for
other expenses. In the words of a former teacher and head of a school in the Syrian
Golan for nine years, including during the time of the capture and occupation of the
Syrian Golan by Israel, students had to pay for books and “the state [of Israel] offered
only the building itself and furniture (in many cases by the taxes of the people of the
municipality).”117
The new educational system in the Occupied Syrian Golan was run by Israeli
authorities, and local residents had little to no input into the design or implementation of
educational policies or curricula.118 Like the Arab sector, the Druze sector is one of the
educational sectors in Israel most lacking in autonomy, and as a part of the Druze sector
in Israel, the educational system in the OSG was no exception. Unlike in the education
system under Syria, in the new educational system under Israeli administration, teachers
were required to be adherents of the Druze sect. Further, because the Druze teachers
were residents of the Syrian Golan and were not citizens of the state of Israel, they were
not granted seniority status and were instead governed by one-year contracts. According
to personal accounts of residents of the Syrian Golan, this allowed the Israeli authorities
to effectively silence teachers whose political views they did not agree with by
controlling those teachers’ terms of employment, basing job opportunities on their
perceived cooperation with the state of Israel rather than on merit. Despite the relative
political stability of the Syrian Golan, teachers through the duration of the occupation and
to the present day are routinely dismissed for demonstrating “any level of political
awareness.”119
Standards for teachers’ qualifications were much lower than throughout Israel. Often
teachers were considered qualified if they simply attended a brief training course in
Israel. “The lack of real qualifications of many of these teachers make them compliant
with the [Occupying] authorities, since they would have difficulty finding jobs
116
Interview with Ibrahim Nasrallah, Majdal Shams, Occupied Syrian Golan (Aug. 11, 2008). [In Arabic
with simultaneous translation into English].
117
Id.
118
Id.
119
Mara’i, supra note 5, at 81.
24
elsewhere”.120 This in turn contributed to the lack of quality of the overall education
received in the Occupied Syrian Golan and to the de-legitimization of authority that has
already begun occurring among students as a result of living under what residents
perceived to be an illegitimate authority. Many students in the Occupied Syrian Golan
continuously feel alienated from the school system, since they perceive it to be an
illegitimate organ of a government that does not represent them.121 Often, students seek
out alternative forms of education that they believe are more authentic, learning about
their identity and history from their families at home, and from supplementary forms of
education such as the highly politicized annual summer camps that will be discussed
momentarily.
Content of the Druze Heritage Curriculum
The educational curriculum for Druze that was instituted in the Occupied Syrian Golan
was the same curriculum developed for the Galilee Druze in Israel proper. As discussed,
and in the words of an OSG resident, it intended “to inculcate a sense of separate ‘Druze
identity,’ distinct from the Arab identity-as if members of this eleventh-century offshoot
of Islam constituted a nation rather than a religious sect.”122 The Committee for Druze
Education and Culture directed its efforts primarily at creating textbooks and curricula
that emphasized ‘Druze history and heritage’ and were all prepared by Druze educators
and administrators who were not from the Syrian Golan.123 “The committee had to start
from scratch, as all [previous] curricula were suited to the Arab schools, without any
reference to Druze culture.”124 By 1982, all Druze schools offering a matriculation
examination used the new Druze curricula, and by early 1988, textbooks on Druze
history, heritage and civics were published and in circulation.125 These new textbooks
were for grades 3 to 12, and included Hikayat min Qurana (Tales from our Villages), Min
120
Id.
Shamai, supra note 42, at 462.
122
Mara’i, supra note 5, at 81.
123
Falah, supra note 5, at 229.
124
Id.
125
Id.
121
25
adabina waa’datina (Manners and Customs), Qiyam Wataqalid (Values), among
others.126
In Israeli schools, students’ studies of history are divided based upon the ethnic
and/or religious heritage to which they are assigned at school (Jewish, Druze or Arab).
For example, students in Jewish schools study Israeli and general history (50% of their
time spent on each). In Arab schools, within the same number of hours, students study
general history (40%), Arab history (40%), and Israeli history (20%). Finally, in Druze
schools, the students’ studies are divided even further, into four categories: general
history (30%), Arab history (30%), Israeli history (20%), and Druze history (20%).127
Despite the implicit rationale given for Israel’s usage of separate education for Druze,
which is based on a notion of specificity to the particular group – that is, that the different
or unique circumstances of the Druze dictate that a different curriculum would be more
appropriate for them – no similarly specific attention is given to the local history of the
Occupied Syrian Golan. “No mention is made of the fact that the Golan Heights has
always been part of Syria.”128 This means that any history dealing with the forced
transfer of over 95% of the population of the Syrian Golan, including nearly all of the
villagers’ neighbors is omitted. Further, it means that the legal status of the Occupied
Syrian Golan is presented only in terms of Israel’s position and Israel’s strategic
objectives, ignoring the position held by Syria, the United Nations, nearly all countries of
the world, and most notably, the Syrian Golan residents themselves.
The curriculum as a whole, which reflects the state’s aims to form loyal citizens to
Israel and enthusiastic adherents of Zionism, encourages the Druze to serve as Israeli
soldiers who are willing to sacrifice their lives for the state of Israel. When imported
wholesale into a territory occupied by Israel, its intentions take on a more sinister
126
Hikayat min Qurana [Tales from our Villages] (1982), revised (1995) (for grades 3-4); Min adabina
waa’datina [Manners and Customs] (1986) (for 5th grade); Qiyam Wa taqalid [Values] (1978) (for 6th
grade); Min al-Salaf al-Salih [Wise Men of the Religion] (1979) (for 7th grade); Min al-Torath al-Sha’abi
[Popular Heritage] (1979), revised (1996) (for 8th grade); Min A’alam al-Druze [Druze Personalities]
(1980) (for 9th grade); Min U’oyoon Torath Bani Ma’arouf [Druze Heritage for High Schools] two parts,
second edition revised (1987); Min Torath al Mowahideen al-Druze (1993); Aayad [Holidays] (1979) (for
all grades); Morshid al-Mo’alim [Teachers Guide] (1979); Min Bustan Torathi, (1993) (for 3rd grade) as
cited in Falah, supra note 5, at 231.
127
Committee for Druze Education and Culture, History Curriculum for Druze Schools (Ministry of
Education and Culture, Proposal, 1982) (final version in print) as cited in id.
128
Mara’i, supra note 5, at 81.
26
meaning. Some might assume that the Israeli authorities are making a factually incorrect
assumption that the Occupied Syrian Golan is a part of Israel. But more likely, others
will take the position – held by the majority of residents of the OSG – that the Israeli
authorities are aware that the Occupied Syrian Golan is under Syrian sovereignty, that
their imposition of a nationalist curriculum to an occupied population may be seen as an
attempt to alter the demographic landscape of the territory, perhaps prejudicing a final
settlement of the territory with Syria, and as will be discussed, may even violate the
residents’ rights under IHL and IHRL. If the latter, many residents of the Syrian Golan
use this as evidence that Israel is using its curriculum in the OSG to deliberately miseducate students in an attempt to satisfy the state’s aims of permanently acquiring
territory in contradiction of IHL. It could also suggest the little priority held for the needs
of the students and residents of the Occupied Syrian Golan themselves.
The curriculum also intentionally distances Druze Arabs from their Arab ethnicity in
order to create a unique Druze identity. One of the functions of separating out the Druze
has been said to distance them from sentiments of Arab nationalism, pan-Arabism, or
empathy with the Palestinian Arabs in Israel and the Occupied Palestinian Territories.
Supporters’ efforts to oppose this separation and instead emphasize ties between Druze
and other Arabs led to accusations that they were “radical elements who, out of politicalideological motives, were bent on emphasizing the common bond between Druzes and
Arabs.”129 These supporters of Arab heritage and opponents of the Druze heritage
curriculum insisted that Druze heritage was part of Palestinian-Arab heritage, and that the
government was propagating political divisions between non-Druze Arabs and Druze
Arabs.130 This position is largely the same as the position of many of the residents of the
Syrian Golan, who in their strong opposition to becoming part of the state of Israel,
aligned themselves culturally, politically and otherwise with their Palestinian Arab
brethren.
Many residents of the Syrian Golan go so far as to say the state through its
curriculum, in its enthusiasm to instill the values of the national Zionist project in the
Syrian population, in essence robs the OSG residents of their own history, legitimizing
129
130
Falah, supra note 5, at 230.
Id. at 231.
27
Israel’s occupation of their territory and what they see as the theft of their neighbors’
land. However ineffective this strategy has proved in convincing the inhabitants of the
Syrian Golan of Israel’s position, it suggests a disregard for the rights of the children in
question to an accurate portrayal of their history and identity that will be explored in
relation to IHRL and IHL.
Content of Arabic-language and Hebrew-language Curricula
In the Arabic language curriculum in Druze schools in Israel, the normal materials taught
in the Arab sector in Arabic literature are supplemented by Druze literature without
adding additional class time. The Druze literature surveyed spans a period of over 1000
years, from the faith’s founding in 1017 all the way through modern works,131 and was
implemented as part of the efforts to establish a unique, Druze curriculum.
The Hebrew language curriculum for Druze schools in Israel also supplements the
regular materials used in Arab or Jewish sector schools with special Druze-focused texts;
in this case, works written by adherents to the Druze sect, originally either in Hebrew or
in Arabic, and translated into Hebrew.132 The associated textbook series for Druze sector
schools was prepared jointly by the Israeli Ministry of Education and a team from the
University of Haifa, and is called “Roots”.133 The regular materials include study of
Jewish holy texts (the Bible and Talmud), Jewish thought and philosophy, and grammar
and literature aimed at giving students “insight into all aspects of Jewish culture.”134
When implemented in schools in the Syrian Golan, residents again contested the
usage of literature that aimed to emphasize their religious identity at the expense of time
that could have been spent learning about the rich cultural and literary heritage of the
Arabic language. Residents lamented that in Syrian schools, students learned about Arab
131
Committee for Druze Education and Culture, Minhaj el-Loghah el-Arabia Lel Madaris el-Dorzia wa al
Mukhtalatah [Arabic Language Curriculum for Druze Schools], Ministry of Education and Culture
(Jerusalem, 1980) (Isr.) (revised version in print as of 2002) as cited in Falah, supra note 5, at 233.
132
Ministry of Education and Culture, and the University of Haifa, El-Montakhab (1987) (for 9th grade),
final edition (Haifa, 1996); Mukhtarat min Tarikh el-Adab Wanusoosihi [Selections from the History of
Literature] (el-Nahdah, Nazareth) (1984) (for grade 10), revised edition under the name el-Montakhab (in
print as of 2002) (for junior-high schools); Ministry of Education and Culture and the University of Haifa,
el-Montakhab (Haifa, 1986) (for 12th grade), (revised version in print as of 2002) as cited in Falah, supra
note 5, at 233.
133
Ministry of Education and Culture, The Hebrew Curriculum for Druze Schools, (Jerusalem, 1987) (Isr.)
as cited in Falah, supra note 5, at 233.
134
Id.
28
culture spanning thousands of years, from pre-Islamic poetry onward, a heritage that was
distilled and reduced down to a superficial focus on grammar and syntax in Arabic, and
substituted with Jewish literary references translated into Arabic, or sources related in
some way to the Druze sect.135 The feeling that they were inadequately learning the
Arabic language, culture and heritage led many residents of the Syrian Golan to take
advantage of the opportunity to go to Damascus for their higher education, to take up
traditional artistic or cultural pursuits related to Arabic culture, and to create and pursue
the non-state sponsored educational initiatives that will be discussed next.
Non-state-sponsored educational initiatives
In addition to the kindergartens they developed, the Druze residents of the Occupied
Syrian Golan took it upon themselves to supplement their Israeli public education via
special summer camps beginning in 1986.136 Many of the camp organizers were arrested
in the early years of the camp by Israeli authorities for what residents described as
organizers’ pro-Syrian nationalist and pro-Palestinian leanings. In fact, according to
reports of camp organizers in 2008, the IDF only stopped attending their camp in the last
few years, presumably after having stopped considering it as much of a threat to Israeli
security.137
According to its organizers, the intent of the pro-Syrian camp (called Esham, which
in Arabic means “Greater Syria” or simply “Syria”)138 was to provide the children of the
Occupied Syrian Golan with what they considered an accurate portrayal of their history,
identity and culture. The ten-day camp, which in 2008 boasted 280 participants, educated
students in Arab culture including Arabic music and literature and Syrian and Golani
political history, including the names and history of the villages from which their
neighbors were expelled in 1967, in addition to supplemental lessons in sex education
135
Fieldwork (Summer 2008), supra note 62.
Shamai, supra note 42 (describing the competing summer camps that were held, one pro-Syrian
nationalist and the other pro-Israeli nationalist. After the arrest of several organizers of the pro-Syrian camp
however, it became definitively the more popular of the two).
137
Interview with Moatezz Abu Jabal. Majdal Shams, Occupied Syrian Golan (August 2008).
138
In 1999, the camp was called “Withdrawal” or “al-Jalaa” in Arabic. See Joel Greenberg, The Druse of
Golan Stay Loyal to Syria, NEW YORK TIMES, August 9, 1999. Available at
http://www.nytimes.com/1999/08/09/world/the-druse-of-golan-stay-loyal-tosyria.html?pagewanted=all&src=pm
136
29
and sports. The 2008 camp included a special first-time presentation from a resident of
Majdal Shams who had been seriously injured by a cluster bomb, who warned children
about both the dangers of cluster bombs and the landmines which are spread all around
the borders of the Occupied Syrian Golan, even bleeding into the village of Majdal
Shams and sometimes causing fatalities. Finally, the camp situated the history of the
Syrian Golan in the context of the larger Israeli occupation of the Palestinian territories,
and established a connection of solidarity between the two occupied peoples.139
According to a 1999 news article about an earlier meeting of the summer camp, one
director (Mr. Abu Jabal) explained the camp’s objectives as being (as summarized by the
reporter) “set up to counter the Israeli-controlled curriculum of schools on the Golan
Heights, where Druse children learn Hebrew as well as Arabic and Middle Eastern
history devoid of Arab nationalist content.”140 The camp director went on to say: ''Israel
is trying to turn them into Israelis, and we reject that,'' Mr. Abu Jabal said. ''We want to
teach our children that we have a homeland, a nation, a people that we're very proud
of.''141
However, pride in the residents’ Syrian homeland was not all that campers learned,
according to the article:
'We learned to love our homeland, defend our nation and hate Zionism,'' said Badia
Sabra, a 13-year-old boy from the Druse village of Masadeh.
Khaled Abu Shahin, 14, from the neighboring village of Buqata, said that after three
summers at the camp, his perspective on Israel had changed. Visiting the ruins of a
village destroyed after the 1967 war made him feel that ''Israel is unjust,'' he recalled
in the eloquent Hebrew he learned in school.'' When I saw it, I couldn't believe the
Israelis could be so harsh,'' Khaled said. ''I had thought they were good. Now I believe
that only our people are good for us. We want to return to Syria and live with our true
people, like our grandparents did.'142
The sentiments expressed by campers demonstrate some of the dangers of backlash
when competing political histories are presented to students due to the lack of accurate
information at school. Rather than promote tolerance and friendly relations among
nations and peoples by teaching two sides of a historical narrative at once, teaching one139
Supra note 137.
Supra note 138.
141
Id.
142
Id.
140
30
sided narratives and excluding any other perspective leaves open the possibility that when
confronted with missing information, a student on either side of a conflict will feel
betrayed. This also demonstrates why states exercise caution and even at times
overcompensate by excluding all potentially controversial information when considering
how to teach students about violence or conflict in the past. It also might help explain
why an occupant may exercise particular caution about including materials in educational
curricula that may incite anger in the occupied population.
In addition to such organized attempts to re-educate the children of the Occupied
Syrian Golan in what many residents view as a correct (albeit traumatic) version of their
history, culture and identity, residents are also educated about their Syrian identity is at
home. Within the homes of Majdal Shams are pictures of Syrian President Bashar alAssad, Arabic instruments such as the ‘oud and qanun, and the frequently playing of
Arabic-language television from Lebanon and Syria and the music of Fairouz and Om
Kalthoum (famous Lebanese and Egyptian singers). Despite the difficulties of doing so
due to the closed borders and travel restrictions, families intentionally maintain ties to
their families from whom they are separated in Lebanon and Syria in particular, in an
attempt to show their children that they are Syrian even if they have never seen (or may
never see) Syria.143
Competing National Histories as a Security Risk
Israel has at times considered the commemoration of competing historical narratives –
particularly those related to the Palestinians and their historical grievances against Israel
– as an incitement to violence, and as such, a security risk for the state. Evidence of this
can be found in Israel’s recent outlawing of “Nakba” commemorations,144 or the
Palestinian commemoration of the historical “catastrophe” that was what Palestinians
describe as the expulsion of thousands of their brethren from the Palestinian territories in
143
Fieldwork (Summer 2008), supra note 62.
Budget Foundations Law (Amendment No. 40) 5771-2011 (22 March 2011) (Isr.), commonly referred
to as the “Nakba Law”. See High Court Ruling on ‘Nakba Law’ reveals its waning power, January 7, 2012,
available at http://972mag.com/high-court-ruling-on-nakba-bill-reveals-its-waning-power/32271/.
(Statement by Adalah: the Legal Center for Arab Minority Rights in Israel: “this law authorizes the
Minister of Finance to financially penalize government-funded bodies that engage in activities that amount
to ‘rejecting the existence of the State of Israel as a Jewish and democratic state” or “commemorating
Independence Day or the day of the establishment of the state as a day of mourning,”).
144
31
order to create the state of Israel in 1948. In the Syrian Golan Heights, commemorative,
Syrian historical monuments have been attacked by the Israeli authorities, and the Syrian
Golan residents’ attempts to commemorate aspects of their history that they feel have
been marginalized by the Israeli authorities – particularly those in which they believe
they have undergone injustices – have frequently been met with arrests and crackdowns
on participants.145 This focus by the authorities on political histories and public
remembrances of key historical events that may challenge the dominant Israeli national
narrative are indicative of the fact that competing histories, particularly by dissatisfied
minorities, can be viewed by the state as a security risk or an incitement to violence
against the state. This is especially true in the context of Israel, in which the competing
narratives surrounding the state’s origins and legitimacy are cast in ethnic and religious
terms.
Special Factors Affecting the Syrian Golan
Status of Peace Negotiations
Another important characteristic of the Syrian Golan relates to political status
negotiations. The Occupied Syrian Golan is one of the major obstacles to peace
negotiations between Israel and Syria, which despite a relative lack of overt military
hostility, have remained in an official state of war since 1967.146 Syria claims that it will
not sign a peace agreement with Israel until Israel returns the Syrian Golan, and Israel
desires the Syrian Golan for its natural resources147 and military geo-strategic value.148 In
November 2010, the Israeli Knesset passed legislation nicknamed the “Golan
Referendum Law” which requires a public referendum in order to cede any territory that
is under “Israeli sovereignty” as part of peace concessions, referring in particular the
145
Such intervention in the activities of Syrian Golan residents that related to their Syrian political identity
was at its peak during their heightened resistance activities during the 1980’s.
146
After the war in 1973, about 100 km of the Golan was returned to Syria and peace negotiations resumed
and then were again ceased. They have continually begun and then stalled again several times.
147
Israeli agricultural settlements currently produce considerable amounts of high-quality wine, beef, fruit
and mineral water for the domestic market and for international export. See Murphy, supra note 9, at 15.
148
Ministry of Foreign Affairs Website, (Isr.) last accessed May 16, 2012, available at
http://www.mfa.gov.il/MFA/Facts+About+Israel/Israel+in+Maps/Golan+Heights.htm (“The Golan Heights
are strategically important for several reasons: (a) Israeli presence in the Golan Heights provides a
defensible border against invasion by land; (b) All of northern Israel is within range of direct artillery fire
from the Golan Heights; (c) The Heights control the main water sources of the State of Israel. The Golan
Heights have been under Israeli law, jurisdication, [sic] and administration since 1981.”).
32
Golan Heights and East Jerusalem.149 According to its accompanying procedural
legislation, in order to override the referendum provision, a special majority of the
Knesset of 80 members is required.150 The legislation is widely viewed as a potential
obstacle to future peace negotiations.151 Residents of the Occupied Syrian Golan are
“caught between Israel and Syria,”152 waiting for peace negotiations that are beyond their
control to resume and to finish, while they and their future are tossed like pawns between
the two parties. The uprisings in Syria against the Syrian government that began in 2011
and have continued into mid-2012 may also affect negotiations.
Comparatively privileged position
Some OSG residents refer to the Israeli occupation of the Syrian Golan as a ‘five star
occupation’153 due to the relative ease with which residents can move throughout Israel,
the positive view many Israelis hold of Syrian Golan residents as a result of their Druze
heritage, as a result of the positive view of Druze in Israel generally, and their
comparative economic wealth and lack of discrimination in society, at least in relation to
the Palestinians in the occupied Palestinian territories. Because Syrian Golan residents
benefit from the confusion between them and the Galilee Druze, a unique problem is
presented: while advocacy aimed at gaining national and international recognition of the
violations of international law to which the Syrian Golan residents are subject may help
residents resolve their status in the long-run, it could backfire politically in the shortterm. Increased recognition within Israel of the problems facing the residents of the
149
Syria rejects Israeli referendum law for ceding annexed land, CNN, November 23, 2010, available at
http://articles.cnn.com/2010-11-23/world/israel.referendum.bill_1_referendum-peace-deal-knessetmembers?_s=PM:WORLD (describing the legislation’s procedure, in which, if 60 members of Parliament
approve a peace deal that cedes Israeli-annexed land, the proposal will go to public referendum; yet, if 80
members of Parliament (or a two-thirds majority) pass the peace deal, then no public referendum would be
required.).
150
Jonathan Lis, Ministerial panel decides: Territorial concessions only by referendum, Knesset committee
to support bill outlining procedural implementation of referendum, making previously approved law viable,
HA’ARETZ, October 11, 2010, available at http://www.haaretz.com/news/national/ministerial-paneldecides-territorial-concessions-only-by-referendum-1.318417
151
Top minister opposes Golan heights referendum bill: Dan Meridor says a law mandating a referendum
on a Golan withdrawal would tie Israel’s hands in peace talks, HA’ARETZ, October 27, 2009, available at
http://www.haaretz.com/news/top-minister-opposes-golan-heights-referendum-bill-1.5289
152
Shamai, supra note 42, at 462.
153
Fieldwork (Summer 2008), supra note 62. This phrase has also been used to describe the situation of
Palestinians living in Ramallah due to their relative prosperity compared with Palestinians in occupied
Palestinian areas of lesser prosperity such as Hebron.
33
Syrian Golan could attract negative attention to residents and cause negative political or
economic repercussions. For this reason, it can be contended at least to some degree that
the current obfuscation of the “Golan Druze” with the Galilee Druze is beneficial to the
residents of the Syrian Golan. And correlatively, human rights practitioners’ attempts to
clarify between the two groups – particularly by highlighting human rights and
humanitarian legal violations perpetrated by the state of Israel – could negatively affect
the residents.
That being said, the political views of the residents of the Syrian Golan in relation
to Israel are not a secret and have been written about extensively by both residents of the
Syrian Golan and journalists. And particularly given the current political situation with
the conflict in Syria, it is unlikely that the Syrian Golan residents will enjoy such
obfuscation for much longer.
Legal Analysis: Violations of Law
This section will discuss the laws applicable to the Occupied Syrian Golan, including
International Humanitarian Law and International Human Rights Law. It will discuss the
applicability of both sets of laws in times of belligerent occupation according to
international sources, and then Israel’s position on the legal status of the Syrian Golan
and on the applicability of IHL and IHRL to the Syrian Golan. It will explain the legal
reasoning for the determination that the Syrian Golan is occupied as well as Israel’s
objections to this position. This discussion will also detail the extraterritorial application
of human rights law, and specifically of economic, social and cultural rights (of which the
right to education is one), to occupied territories. It will then discuss the issue of
education, first under humanitarian law and more specifically, the laws of belligerent
occupation, and then under the framework of international human rights law. It will then
discuss various frameworks for assessing education rights in order to determine
procedures for assessing and reporting violations to this right, and apply them to the
Occupied Syrian Golan. It will take into account Israel’s contentions that IHL does not
apply to the Occupied Syrian Golan, and consider the protection of the local inhabitants
according to both interpretations of the law. And finally, it will compare and assess the
34
effects of both approaches, with a view to harmonizing conflicting norms between the
IHL obligations and IHRL obligations regarding education in occupied territories.
It should be noted that while in discussions of the applicability of international
humanitarian law to the territories occupied by Israel, usually Israel’s position in regards
to the Syrian Golan Heights is afforded little more space than a footnote. In particular,
the discussion of whether or not Israel intended to annex the Syrian Golan is typically
dismissed as irrelevant, since the Security Council condemned its action as illegal
regardless. This paper will devote substantially more attention to Israel’s position in
reference to the status of the Syrian Golan Heights not because it has a legal effect on the
territory’s status per se, but due to the following assumptions: 1) Israel’s intentions and
position on the status of the Syrian Golan as well as how they are perceived by the
inhabitants of the Syrian Golan have an effect on inhabitants’ opinions generally as well
as in regards to the issue of education, 2) the inhabitants’ consent and cooperation in
regards to educational matters is of interest to the Occupier in accordance with
international law, and is therefore relevant to this study, 3) while a legal analysis takes
into account the letter of the law, where to go after the analysis –or, engaging in problem
solving, often involves prioritizing based on factors which could be called political, and
4) no sincere commitment to problem solving can take place without considering the
intentions, position and justifications of a state actor who may be the perpetrator of a
violation, since these may affect what legal solutions can be eventually be deemed
politically expedient or practical. And finally, conflicting educational aims between the
Occupier and what is envisioned and required by international law have a fundamental
impact on the residents that is relevant to this analysis. This will be discussed in the next
section.
Problem of the Conflict of Laws in an Occupied Territory
The Syrian Golan, as an occupied territory under international law, is subject to the
simultaneous and sometimes-conflicting laws of war (IHL) and laws of human rights
(IHRL). The law of occupation – a subset of IHL – is already complex, and is made
more complex by the situation of prolonged occupation in which the inhabitants of the
Syrian Golan find themselves. Questions as to which laws are being applied and why,
35
which laws trump which laws in cases of conflicting provisions between the applicable
sets of laws, conflicting theories or underlying principles behind these laws, and to what
extent any of this bears on the realities of education within the Syrian Golan will be
addressed through this study from a legal point of view. Depending on whose
interpretation of law prevails at a political level, the residents of the Syrian Golan could
end up in a very different situation than the one they are in now, or remain under the
status quo.
Israel’s Position on Occupation, Annexation and Laws
Despite the prolonged nature of the Israeli occupation of the Syrian Golan, the
international attention and political and diplomatic consequences of its capture and
effective annexation, and the international spotlight on Israel as a result of its conduct
within the occupied Palestinian territories – little has been written on the exact legal
position of Israel vis a vis the Syrian Golan. Much can be inferred through statements by
Israeli heads of state and political leaders, rulings of the High Court of Justice, and
through comparative study of Israel’s reasoning as regards the application of various
international legal instruments to the other occupied territories such as the West Bank and
East Jerusalem, but the clearest positions have come from the analysis of Israeli
submissions to UN bodies. This portion of the present study undertakes to analyze these
positions as thoroughly as possible given the scope of this study.
According to Israel, was or is the Syrian Golan occupied by Israel?
Israel recognized Syrian sovereignty over the Syrian Golan Heights most notably in 1949
in the conclusion of an Armistice Agreement with Syria,154 but has since alluded to
Syrian sovereignty numerous times through public statements.155 When the United
Nations adopted Resolution 242 concerning the illegality of the acquisition of territory
154
Israel-Syria Armistice Agreement, supra note 29.
See, e.g., MOSHE MA’OZ, SYRIA AND ISRAEL: FROM WAR TO PEACEMAKING (1995) at 249 (discussing a
statement of Shimon Peres, current President of Israel, recipient of the joint-Nobel Peace Prize with Rabin
and Arafat in 1994, and then-Foreign Minister to Prime Minister Yitzhak Rabin on July 19, 1994, “We
have acknowledged Syrian sovereignty on the Golan Heights, time after time,” and also noting that in the
same context, Peres “mentioned the Israeli government’s resolution of 19 June 1967, offering to withdraw
the [Israeli] army to the international boundary with Syria in return for full peace…” and that Peres “later
implied in the Knesset that there was a need to change the 1981 Golan Law (which, in fact, meant the
annexation of the Golan to Israel) and that he believed that more than half of the Knesset was prepared to
make such a change.”).
155
36
through force, and identified Israel’s resulting obligation to return territories it occupied
in 1967, Israel agreed to the resolution even while disputing which territories were meant
for withdrawal.156
Israel does not believe that the Syrian Golan is currently occupied.157 Since
extending its civil administration to the Syrian Golan through the Golan Heights Law in
1981, Israel considered its occupation of the OSG ended, and the Syrian Golan part of its
sovereign territory.158 This will be discussed in more detail in relation to a following
question relating to the application of IHL to the Syrian Golan.
Would an annexation of the Syrian Golan by Israel be legal according to international
law?
Israel claimed that the Syrian Golan was captured in self-defense, resulting from Syrian
provocations that began the 1967 war and resulted in the capture of the Syrian Golan
Heights by Israel – although these facts have been disputed.159 This formed a part of its
156
Israel’s key argument in regards to withdrawal is that the wording of Resolution 242 does not specify
that Israel will withdraw from “all territories occupied…”or “the territories occupied,” but merely from
“territories occupied.” See, e.g., EUGENE V. ROSTOW, PEACE IN THE BALANCE: THE FUTURE OF U.S.
FOREIGN POLICY 163-64 (1972); JULIUS STONE, NO PEACE-NO WAR IN THE MIDDLE EAST 39 (1968) as
cited in Asher Maoz, Application of Israeli Law to the Golan Heights is Annexation, 20 BROOK. J. INT'L L.
356-357 (1993-1995) (arguing that reference should be made to the French text, which uses the word “the”
in the French when it states: "des territoires occupes lors du recent conflit" [the territories occupied in the
recent conflict]. According to Israel’s interpretation of this position –which is bolstered by domestic
political and religious pressures in relation to religious, historical and strategic claims to the occupied
territories- certain territories are intended to remain part of Israel, and others are intended to be returned.
The Golan was originally meant to be returned, but members of the Israeli public and Knesset have
increasingly have argued that it should be a part of the permanent borders of the state.)
157
Murphy, supra note 9 at 37-38.
158
Id.
159
AVI SHLAIM, THE IRON WALL: ISRAEL AND THE ARAB WORLD (2001) at 235-236 (discussing the origins
of the 1967 hostilities, arguing that they resulted primarily from the conflict with Syria, which was
escalated and provoked through Israel’s direct military provocations in order to gain more land from Syria,
“Israel’s strategy of escalation on the Syrian front was probably the single most important factor in
dragging the Middle East to war in June 1967, despite the conventional wisdom on the subject that singles
out Syrian aggression as the principal cause of war. It is an article of faith among Israelis that the Golan
Heights were captured in the Six-Day War to stop the Syrians from shelling the settlements down below.
But many of the firefights were deliberately provoked by Israel. Support for this revisionist view came in
1997 from an unexpected quarter: Moshe Dayan [an IDF Commander]… Dayan confessed that his greatest
mistake was that, as minister of defense in June 1967, he did not stick to his original opposition to the
storming of the Golan Heights. [Rami] Tal [a reporter who published private conversations with Dayan
after Dayan’s death] began to demonstrate that the Syrians were sitting on top of the Golan Heights. Dayan
interrupted, ‘Never mind that. After all, I know how at least 80 percent of the clashes there started. In my
opinion, more than 80 percent, but let’s talk about 80 percent. It went this way: We would send a tractor to
plow someplace where it wasn’t possible to do anything, in the demilitarized area, and knew in advance
that the Syrians would start to shoot. If they didn’t shoot, we would tell the tractor to advance farther, until
in the end the Syrians would get annoyed and shoot. And then we would use artillery and later the air force
37
argument that its occupation and subsequent extension of its law, administration and
jurisdiction to the Syrian Golan was legal.
An excellent example of the original reasoning that dictated Israel’s contention
that the Israeli annexation of the Syrian Golan Heights was legal was articulated by
Lauterpacht, who claimed that since international law distinguishes between wars of
aggression and wars of self-defense, the prohibition of the acquisition of a territory by
force is only relevant to cases of territorial acquisition by force in a war of aggression.
When territory is acquired in self-defense, annexation of that territory is not prohibited.160
This position was articulated in relation to the contention that the war of 1967 had been
begun by Syrian aggression. Part of the claim however included the caveat that holding
territories in wars of self-defense was only valid as long as it remained within the
essential security needs of the victim state to do so, since giving up the territory would
pose a significant threat to the state. However, once the territory was deemed to never
again pose a threat to the state’s security, it could give up the territory.161
A second articulation of Israel’s argumentation can be found in the statement of
the Israeli Foreign Ministry’s legal adviser, Elyakim Rubinstein, at the time of the
extension of Israeli administration and law to the Syrian Golan. When asked about the
legal justification for annexation, he claimed that the “legal situation has been elevated”
and “no private rights [of Arab citizens of the Syrian Golan] have been changed or
prejudiced.”162 His contention that the situation was a legal improvement for the
inhabitants of the Syrian Golan was based on his assertion that prior to the Israeli capture
of the Syrian Golan in 1967, Syrian law applied to the Syrian Golan was but “rarely
enforced”, causing a “legal vacuum” into which Israel entered, first imposing a military
also, and that’s how it was. I did that, and Laskov and Chara [Zvi Tsur, Rabin’s predecessor as chief of
staff] did that, and Yitzhak did that, but it seems to me that the person who most enjoyed these games was
Dado [David Elzar, OC Northern Command, 1964-69].’ In retrospect, Dayan could not point to a clearly
formulated strategic conception that governed Israel’s behavior in the DMZ between 1949 and 1967. All he
suggested was that he and some of his fellow officers did not accept the 1949 armistice lines with Syria as
final and hoped to change them by means that fell short of war, by “snatching bits of territory and holding
on to it until the enemy despairs and gives it to us.”).
160
ELIHU LAUTERPACHT, JERUSALEM AND THE HOLY PLACES, 51-52,1968 as cited in supra note 156, at
356-357.
161
S.M. Schwebel, What Weight to Conquest?, 64 AM. J. INTL L. 345-6 (1970) as cited in supra note 156,
at 356-357.
162
John Yemma, Israelis seek to justify annexing Golan Heights, CHRISTIAN SCIENCE MONITOR, 22
December 1981.
38
government and then with a civil government.163 In relation to charges that Israel’s
unilateral legal move was in violation of international law, Rubinstein said, ''International
law is subject to reasonable time and conduct… Syria has passed in our view these
reasonable conduct and time limits by announcing time and again it will not negotiate
with or recognize Israel… even the Law of Occupation cannot be relied upon too long…
good faith is necessary.''164
These statements seem to suggest that Israel held the opinion that there was a time
limit on the length of time a territory may be held in the temporary state of occupation
before the occupant may unilaterally extend its sovereignty over the territory.165 This
perspective is also suggested by historical accounts emphasizing Syrian President Hafez
al-Assad’s statement during the same time period that he would not accept peaceful
relations between the nations.166 Taken together, Rubinstein’s statements emphasizing
his idea of a time limit and the emphasis within historical documents on Syria’s refusal to
negotiate, seem to indicate that Israeli policymakers believed that Assad had relinquished
his claim to the Syrian Golan through his rejection of peace agreements on Israel’s terms.
While problematic for a number of reasons, this perspective is still cited as justification
for the extension of Israeli sovereignty over the Syrian Golan.
According to Israel, is the Syrian Golan annexed to Israel?
Historically, Israel officials claimed that they did not “annex” the territory, although this
claim is disputed by historians.167 As noted by Benvenisti, the text of the Golan Heights
Law (as in the case of East Jerusalem prior to the formal annexation law passed by Israel)
“was vague enough to permit the interpretation that the measure did not effect the formal
163
Id. For further articulation of the claim that the Golan Heights was a “legal vacuum,” see Sheleff, supra
note 51, at 337 (contending that Syrian jurisdiction, prior to the passage of the Golan Heights Law, had
“ceased to be an effective legal instrument.”).
164
Supra note 162.
165
Contra. [Untitled Editorial], HA’ARETZ, December 15, 1981, reprinted in Chaim Herzog, Golan
Annexation: Israeli Comment, 11 J. PALESTINE STUD. (1982) at 174 (criticizing the perspective on a time
limit prior to annexation in an op-ed published shortly after the passage of the Golan Heights Law, “It will
be difficult for us [Israelis] to justify the imposition of Israeli sovereignty on an area that was outside the
sphere of the League of Nations mandate over Eretz Israel by the fact that Syrian[sic] is not ready to sign a
peace treaty with us.”).
166
David Shipler, The Golan Heights Annexed by Israel in an Abrupt Move: Begin Pushes the Legislation
through Parliament – US Criticizes the Action, NEW YORK TIMES, December 14, 1981, at A1 (“It was
Syria's hard-line stance that Mr. Begin cited as an immediate reason for his action. He quoted a report in the
Kuwaiti newspaper Al Rai Al Amm on Sunday that President Hafez al-Assad of Syria had expressed the
determination to refuse to recognize Israel "even if the Palestinians deign to do so.").
167
Supra note 159.
39
annexation of the area into Israel.”168 Others have taken this position, including Leon
Sheleff, who argued that because no Basic Law169 was passed (as was done in the case of
East Jerusalem170) formally annexing (or extending Israeli sovereignty over) the Syrian
Golan, it remains a captured, occupied territory according to Israeli law.171 He further
argued that the act of recognizing some measure of legal autonomy within a territory or
allowing the extension of a certain type of law (such as tribal law) did not automatically
serve as a waiver of one’s sovereignty, citing examples of the American recognition of
Native American tribal law by the U.S. Supreme Court.172 This position has been refuted
by Moaz Asher, who stated that such examples are not analogous, and that the key
characteristic making the extension of the law and jurisdiction of one state over another a
“quintessential act of sovereignty” was in that state’s unilateral action, that is, without the
consent of the state to whom sovereignty, in reality, belongs.173 In the case of the Syrian
Golan Heights, Syria did not consent to the extension of Israeli law over the territory,
making the Israeli act an illegal extension of its sovereignty over the Syrian Golan.
Rubinstein’s statements above could be viewed as a statement that suggests the
Israeli intent to effect formal annexation. The High Court of Justice of Israel, or the
Israeli Supreme Court, has made the clearest statements in regards to the view that Israel
through the Golan Heights Law extending its administration and jurisdiction over the
Syrian Golan amounted to the annexation of the Syrian Golan Heights. Supporters of the
168
See HCJ 205/82 Kanj Abu Salakh v. Minister of Interior [1983] IsrSC 37(2) 718 [hereinafter: Kanj Abu
Salah] (approving Justice Cohen’s opinion in HCJ 283/69 Ruweidi v. Military Court in the Hebron District
[1969] IsrSC 24(2) 419, 423) as cited in EYAL BENVENISTI, THE INTERNATIONAL LAW OF OCCUPATION,
Princeton University Press, 2004 (first printing 1993), at 114 [hereinafter: Int’l Law of Occupation]
(arguing that Kanj Abu Salakh is one example of the High Court’s refusal to adjudicate the issue of whether
or not the Israeli government’s reservation regarding the de jure applicability of the law of occupation is
applicable to the territories, “But cf. Justice Kahan’s opinion in Ruweidi, holding the 1967 declaration as
affecting annexation,”). See discussion at 110-112 of id.
169
Israel does not have a formal written constitution. Rather, it has a series of 11 Basic Laws that serve as
the constitutive laws of the state, serving the same purpose as a constitution.
170
Basic Law: Jerusalem: The Capital of Israel, 1979-1980 S.H. 186 (Isr.) translated in 34 L.S.I. 209
(1979-1980).
171
Supra note 51, at 335 (admitting that in a constitutional law textbook on Israel, only one cursory
mention was made of the Golan Heights Law, and it stated that the law annexed the territory to Israel, and
describing the intentional lack of use of the term annexation during the passage of the law as evidence for
the assertion that the Knesset did not want to state the purposes of the law explicitly “for reasons of
sensitivity to international public opinion,” citing that an opponent of the law, Member of the Knesset
Charlie Biton, unsuccessfully proposed changing its name to "The Law for the Annexation of the Golan
Heights.").
172
Id. at 347.
173
Supra note 56.
40
idea that the Golan Heights Law did affect annexation, meaning that it transferred
sovereignty over the territory to Israel, draw upon an Israeli High Court decision bearing
on the question of the status of the Syrian Golan after the passage of the Golan Heights
Law174 in which the Court was petitioned by residents of the Syrian Golan Heights
regarding whether they were required to carry identity cards. The residents’ request
squarely addressed the question of whether the Golan Heights Law meant that the
residents were legally in Israel, and therefore obligated under the Israeli law to carry their
identification cards.175 In response, the Court stated: “Wherever in the law it says Israel
or the state of Israel, Ramat HaGolan [the Golan Heights] is included.”176 While the
Court clarified that simply extending Israeli administration over a territory outside of the
state does not by itself affect annexation of the territory: annexation is determined by a
host of other factors including the political conditions and intentions of the legislators at
174
Some of the confusion here may arise from the differing English renderings of the case title: it is
alternately written, Kanj Abu Salakh v. Minister of Interior, as in Int’l Law of Occupation, supra note 168;
Kanagh Abuzalah v. the State of Israel, Abu Salah v. Minster of the Interior, and S. Cang’ Abu Zalach et al
v. The Minister of the Interior et al as cited in Ora Schmalz, A Survey of a Selection of Judgments
Delivered by the Supreme Court of Israel, 19 ISRAEL L. REV., (1983), and Kang Abou Tzalach v. Minister
of the Interior, as cited in Sheleff, supra note 51, at 345. The author has relied upon others’ reports of the
text of the case, including both supporters and opponents of annexation who have written in English after
translating the Hebrew text themselves, since no English rendering is available on the High Court of Justice
website or elsewhere. Most sources consulted however reached similar conclusions regarding the meaning
of the Court’s holding.
175
Kanj Abu Salah, supra note 168, (bearing on legislation contained in the Emergency Regulations
(Possession and Presentation of Identity Certificate) (Extension of Validity) Law, 5731- 1971, 1970-1971
S.H. 109, translated in 25 L.S.I. 108 (1970-1971)) as cited in supra, note 156, at 381; see also Schmalz,
supra note 174, (referring to Kanj Abu Salah, “The argument for the petitioners, contending that the duty to
accept and to hold Israeli Identity Cards does not apply to them, was based on the opinion that the Ramat
HaGolan Law did not make the area part of the State of Israel, and that therefore a person who is lawfully
in the Golan Heights is not lawfully in Israel. Hence he has no duty to accept, to hold, and to produce an
Identity Card. The argument for the respondents was that in consequence of the Ramat HaGolan Law, a
person lawfully staying in the Golan Heights must be regarded as a person being in Israel lawfully. Barak J.
resolved the case by stating that in his view, all legal norms applying to Israel have, by force of the Ramat
HaGolan Law, been applied to that area. He stated that the applicants' interpretation leads to absurd
consequences. He emphasized that the Laws enacted by the Knesset must be interpreted in order to achieve
their aim. The judge stated further that in line with this attitude, there can be no doubt that the legislative
aim and the wording of the relevant provision is to equate the Golan Heights, for the purpose of the Law,
the Jurisdiction and the Administration, to the State of Israel itself. Each applicant is, therefore, "a resident"
for the purpose of the Population Registry Law, and the Law requiring the possession and the presentation
of an Identity Card, and therefore the duty to accept, to carry with him, and to produce, an Identity Card
applies to him.”).
176
Kanj Abu Salah, supra note 168, as cited in Rael Jean Isaac & Erich Isaac, Should None Dare Call It
Treason?, OUTPOST, Dec. 1994, at 4 [hereinafter: Treason].
41
the time of adopting the legislation,177 it further stated, “In the matter before us, the
language of the law and the legislative purpose will lead to the conclusion that wherever
there is reference to 'Israeli law', 'Israel', or another expression that refers to the state,
Ramat HaGolan is also meant.”178
While the decision has been interpreted by many to indicate that the court
answered the question of annexation in the affirmative, a careful reading of this phrasing
could lead one to come to the conclusion that the Court did not mean that the state had
effected formal annexation, and that it simply reiterated the text of the Golan Heights
Law using different wording.179
One argument in support of the idea that Israel intended to annex the Syrian
Golan through its passage of the Golan Heights Law, and yet did not want to jeopardize
its claim over the territory through a public, international announcement, can be found in
an argument published in an op-ed by former Israeli Permanent Representative to the
United Nations and Knesset member Chaim Herzog shortly after the passage of the law.
Herzog suggested that David Ben Gurion, one of the founders of the state of Israel,
advocated a strategy of “ambiguity in what was said on the one hand, and the fact that we
were there on the ground on the other” as the “best combination”180 of tactics in relation
to the task of defining Israel’s borders in Israel’s favor.181 Herzog criticized the
enactment of the Golan Heights Law as unnecessarily compromising Israel’s best
chances of winning the territory, accusing the Knesset of engaging in “unnecessary
detail” in legislation, and putting what would be criticized as the illegal annexation of the
Syrian Golan permanently on the United Nations agenda.182 The strategy advocated by
Herzog demonstrates clearly what critics of Israel have alleged, namely, that Israel
177
Kanj Abu Salah, supra note 168, (“In a case that dealt with the question of the legal status of the Golan
Heights, in light of the Golan Heights Law, Justice A. Barak noted, in line with the comments of Justice H.
Cohen, that "application of Israeli norm X on place Y outside the borders of the State does not necessarily
make place Y part of Israel. Everything depends on the purpose, language, and implementation of the norm
being interpreted") (B’Tselem, trans.) as cited in B’tselem: The Israeli Information Center for Human
Rights in the Occupied Territories, A Policy of Discrimination: Land Expropriation, Planning and Building
in East Jerusalem: Comprehensive Report, May 1995 at 13.
178
Treason, supra note 176, at 4.
179
This is the conclusion that is reached by Sheleff, supra note 51, at 345.
180
Herzog, supra 165, at 174.
181
This tactic has been criticized internationally as Israel’s attempt to use territorial ambiguities and
settlement policies to engage in unlawful territorial expansion, or “land grabs.”
182
Herzog, supra 165, at 174.
42
intentionally employs such strategies of legal ambiguity combined with actions that
physically encroach on the territory it occupies in order to expand its borders through
creating “facts on the ground.”
The clear acknowledgement of such a strategy also casts doubt over Israel’s
assurances that it did not intend the de facto annexation of the Syrian Golan through its
passage of the Golan Heights Law.183 It is possible that Israel’s statements in regard to
its intentions are unreliable, given the possibility that – in line with Ben Gurion’s strategy
as articulated previously – Israel intentionally conceals its intentions as a matter of public
policy strategy.
While the government of Israel typically avoids use of the term “annexation” in
reference to the Syrian Golan, discussions of “maintaining Israeli sovereignty” over the
Syrian Golan abound. Such phrases as “retaining Israeli sovereignty over the Golan” are
common, as used in the Government of Israel’s Guidelines in 2010, or the High Court of
Justice’s consideration of a question in which a petitioner claimed that a local Syrian
Golan-based Israeli association was using funds in order to create propaganda aimed at
maintaining Israeli sovereignty over the Syrian Golan and preventing any attempts to
relinquish control over the territory.184 Furthermore, the 2010 “Golan Referendum Law”
was widely reported by news agencies to require a public vote for any attempts to cede
the territories “under Israeli sovereignty,” including the Syrian Golan Heights.185
The issue of Israeli sovereignty over the Syrian Golan has been such a passionate
issue of debate in Israel that it has been claimed by prominent Israelis that any person
who is acting under the intention of removing any part of the sovereign territory of Israel
is committing treason according to the Israeli penal code – a crime punishable by death or
183
Accord Asher, supra note 156, at 366 (describing the doublespeak when it came to the interpretation of
the initial Israeli extension of its law, administration and jurisdiction to East Jerusalem as effective
annexation, which later became apparent through more clear legislation in the form of a Basic Law on
Jerusalem, “it was almost natural that while the leaders of the state were making it clear both within and
without the Knesset that East Jerusalem had been annexed to Israel, the representatives of the state in
international forums fervently denied that this was the result.”).
184
HCJ 2838/95 Greenberg v. Katzrin Local Council [1997], available at
http://elyon1.court.gov.il/files_eng/95/380/028/B01/95028380.b01.pdf.
185
See e.g., Jonathan Lis, Knesset Pushes Golan Referendum Law, HA’ARETZ, December 9, 2009, available
at http://www.haaretz.com/news/knesset-pushes-golan-heights-referendum-law-1.2474.
43
life imprisonment.186 As recently as 2008, a Member of the Knesset remarked: “There is
not a sane nation in the world that gives up the territory of its homeland… Whoever
removes land from the State of Israel's sovereign territory is subject to the death
penalty… Giving away the Golan Heights to Syria is treason, and the punishment for a
person who commits treason under Israeli law is death.”187
The above discussion should serve as strong evidence to suggest that despite
Israel’s early claims to the contrary, and its refusal to use the explicit term annexation in
relation to the Syrian Golan, Israel takes the position that it has extended its “full
sovereignty” over the Syrian Golan, which according to the rules of international law
which will be discussed later, constitutes effective annexation. However, as will also be
discussed later, regardless of Israel’s official position, the 1981 Golan Heights Law is
considered an ‘effective annexation’ under international law.
Israeli Reasoning for Continuing to Hold the Syrian Golan
Since 1981, Israel continues to hold the Syrian Golan Heights based on the assertions
that, (a) as mentioned previously, the Syrian Golan Heights were legitimately captured as
a means of self-defense during unprovoked warfare by Syria, (b) The Syrian Golan
Heights is a strategic plateau that is vital to Israel’s defense of its borders, which
according to Security Council Resolution 242, are guaranteed to be “secure and
recognized”. Because of the physical characteristics of the Syrian Golan Heights, which
overlooks Israel, and its proximity to unfriendly, warring Arab states, it represents a
territory that – if given up – would compromise Israel’s security. As an example of the
vulnerability to Israel that the Syrian Golan Heights poses, Israel cites its cities being
shelled by Syria from positions on the Syrian Golan Heights. Israel interprets the word
“secure” in Resolution 242 to mean that its borders be “defensible”.(c) Alternately, some
186
The revised penal code cited in Treason, supra note 176, at 4, was adopted by the Knesset in 1981 and
according to the authors, “Chapter 7, entitled "Security of the State, Foreign Relations and Official
Secrets," includes paragraphs covering treason which were incorporated verbatim from earlier revisions of
the penal code adopted in 1957. Paragraph 97b reads: "Anyone who does something with the intention of
removing territory from the sovereignty of the state or making that territory part of the sovereignty of a
foreign state or has performed an act that is likely to bring this about--the penalty is death or life
imprisonment.” See also Louis Rene Beres & Zalman Shoval, On Demilitarizing a Palestinian “Entity”
and the Golan Heights: An International Law Perspective, 28 VAND. J. TRANSNAT’L L., Nov. 1995 at 970;
see also HOWARD GRIEF, THE LEGAL FOUNDATION AND BORDERS OF ISRAEL UNDER INTERNATIONAL LAW,
2008, at 562-563.
187
Nissan Ratzlav-Katz, MK Eldad: Death Penalty for Golan Land Concessions, ISRAEL NATIONAL NEWS,
May 26, 2008, available at http://www.israelnationalnews.com/News/News.aspx/126304
44
prominent Israelis take the position that the Syrian Golan Heights is a part of the
historical borders of Eretz Israel or the Biblical “Land of Israel”. This is the position
sometimes afforded by Israeli heads of state regarding the West Bank and the Gaza
Strip,188 and is also at times position that officials use to justify the establishment of
permanent settlements in the Syrian Golan Heights, the West Bank, and the Gaza Strip.189
Others however see the Syrian Golan Heights as temporarily under Israeli control,
pending a peace agreement with Syria in which the Syrian Golan Heights will be returned
to Syria.190 (d) Still others claim that the Syrian Golan Heights is primarily held due to
political battles over access to vital water resources that benefit the state of Israel.191
According to Israel, does international humanitarian law apply to the Syrian Golan?
Regarding the applicability of international law to the Syrian Golan Heights, and to the
occupied territories more broadly, Israel maintains that it upholds international law in its
administration of the occupied territories.192 It disagrees however with the interpretations
under which certain standards of international humanitarian law would apply to the
territories it occupies. Because the Hague Regulations form part of customary
188
In an NBC Meet the Press interview of April 25,1982, Begin was asked about allegations that Israel was
“moving unmistakably” to annex the West Bank and the Gaza Strip. He replied, “Well, first of all, I would
like to say a word about the term annex, or annexation. You can annex foreign land. You cannot annex
your own country. Judea and Samaria are part of the Land of Israel, or in foreign languages, Palestine, in
which our nation was born. There our Kings ruled and our prophets brought forth the vision of eternal
peace. How can we annex it?” as cited in ZVI HARRY HURWITZ, BEGIN: HIS LIFE, HIS WORDS, HIS DEEDS,
(2004) at 167-168. See transcript of full interview available at Ministry of Foreign Affairs Website, (Isr.),
http://www.mfa.gov.il/MFA/Foreign%20Relations/Israels%20Foreign%20Relations%20since%201947/19
81-1982/118%20Interview%20with%20Prime%20Minister%20Begin%20on%20NBC%20Tel
189
In particular, this is the position of the “messianic” movement Gush Emunim that was the first to
establish many settlements. Other justifications for settlements include that they are placed for security
reasons to use as a “front line warning system,” see Dan Simon, Israel’s Settlement Liability, LOS ANGELES
TIMES, May 25, 2011, available at http://articles.latimes.com/2011/may/25/opinion/la-oe-simon-israelnetanyahu-20110525
190
This has been the position of several Israeli administrations that have been willing to negotiate with
Syria according to the “land for peace” formula. G.A. Res. 2200A (XXI) at 1, U.N. GAOR, 21st Sess. Supp.
No. 16, U.N. Doc. A/6316 (Dec. 16, 1966), Art. 4.
191
Supra note 148 (listing water as one of the reasons for the Golan’s strategic importance to Israel).
192
This is Israel’s position as described in U.N. documents, see, e.g., Core Document Forming Part of the
Reports of States Parties: Israel, delivered July 25, 2008, U.N. Doc. HRI/CORE/ISR/2008, November 21,
2008 at 42, ¶103, available at http://www.unhcr.org/refworld/pdfid/4964a6362.pdf [hereinafter: Israel Core
Human Rights Document], For historical position, see, e.g., Prime Minister Begin’s Statement to the
Knesset on his visit to the U.S. 27 July1977, available at
http://www.archive.org/stream/israelsforeignre00medz/israelsforeignre00medz_djvu.txt (“The State of
Israel upholds international law, but if anyone relies upon the Geneva Convention of 1949, which is
designed to protect the civilian population in occupied areas, I must say, first of all, that Jewish settlement
does not in any way of under any circumstances do harm to the Arabs of Eretz Yisrael. We have not
dispossessed, and will not dispossess, any Arab from his land.”).
45
international law,193 and Israel has an internal policy of automatically incorporating
customary law into its laws, Israel agrees that it is bound by the Hague Regulations.194
However, because other conventions concerning international humanitarian law to which
it is bound, most notably the Fourth Geneva Convention, it considers partially
inapplicable because it has not formally incorporated the legal provisions into its
domestic law, which since it is a declaratory treaty, it must do through enacting and
passing its own legislation.195 However, Israel agrees that the “humanitarian provisions”
of the Fourth Geneva Convention form a part of customary law, so they agree to respect
these provisions in accordance with their interpretation of the Fourth Geneva Convention.
Israel repeatedly argues that it does not consider itself bound by the Fourth
Geneva Convention as concerns the West Bank and Gaza, and Gaza, based on its
interpretation of Article 2(2) of the Fourth Geneva Convention196 and its analysis of the
historical circumstances that bear upon the question of to whom sovereignty belonged.197
In this situation, it applies the “humanitarian provisions” of the Fourth Geneva
Convention, but not any “political provisions.”198 It also claims that because it allows the
ICRC to operate in the occupied territories, the ICRC effectively ensures compliance
with the rest of the Fourth Geneva Convention, which Israel insists it effectively respects
since it does not stand in the way of the operation of the ICRC and in fact, complies with
most of its requests.199
With regard to the Syrian Golan, this argument disputing the former sovereignty
of the territory is inapplicable. And yet, little has been written on Israel’s legal position
concerning the Syrian Golan and the de jure application of the Fourth Geneva
Convention. Since Israel contends that its civil law and administration extend to the
Syrian Golan, and that the Syrian Golan is part of its sovereign territory, Israel on that
193
See, e.g., Mazen Qupty, The Application of International Law in the Occupied Territories as Reflected
in the Judgments of the High Court of Justice in Israel, available at http://quptylawfirm.com/wpcontent/uploads/2010/10/Application-of-international-law-in-occupied-territories.pdf at 3.
194
Id.
195
Israel Core Human Rights Document, supra note 192 at 42, ¶103.
196
Supra, note 193 at 11.
197
Id.
198
Id.
199
In addition to numerous HCJ cases and other official statements of Israel’s government describing its
cooperation with the ICRC, see International Committee of the Red Cross website, The ICRC in Israel and
the Occupied Territories, January 3, 2012, available at http://www.icrc.org/eng/where-we-work/middleeast/israel-occupied-territories/overview-israel.htm (describing work in the occupied territories since 1948).
46
basis rejects the application of IHL to the Syrian Golan.200 The residents of the Syrian
Golan are considered permanent residents of Israel, and Israel rejects the residents’
claims to Syrian nationality.201 However, it should be noted that Israel allows UN
Peacekeepers to operate in the Syrian Golan in the Demilitarized Zone, cooperates with
the International Committee of the Red Cross on specific humanitarian issues related to
the Syrian Golan’s inhabitants, and recognizes the existence of a military conflict
between itself and Syria.
According to Israel, does international human rights law apply to the Syrian Golan?
Since Israel’s position is that all of the laws of Israel extend to the Syrian Golan, it is
understood that Israel believes that human rights law applies to the Syrian Golan to the
extent which human rights laws are incorporated into Israeli domestic law. Because
Israel does not automatically incorporate legislation from international treaties it ratifies
into its domestic law, requiring specific legislation in order to do so,202 only the
provisions of human rights treaties it has ratified that have made their way into Israeli
domestic law through such legislation, or that are considered customary international
law,203 are considered applicable by Israel to any of what it considers its territory,
including the Syrian Golan. Israel contends that, “the Supreme Court has ruled, that both
customary and treaty law affect Israeli law, since Israeli law operates under the
presumption of compatibility between the domestic law and the international norms Israel
has undertaken to uphold.”204 Thus, human rights treaties constitute an important tool for
200
Israel does not recognize the de jure applicability of the Fourth Geneva Convention or the Hague
Regulations to the Syrian Golan. T. Davenport, A Study of Israel’s Occupation of the Golan Heights, Irish
Centre for Human Rights (2008) (unpublished manuscript, National University of Ireland, Galway) (on file
with Al-Marsad: the Arab Center for Human Rights in the Occupied Golan), as cited in Murphy, supra,
note 9, at 36. For an analysis of the Israeli Supreme Court’s jurisprudence related to the occupied
territories, see D. Kretzmer, The Occupation of Justice – The Supreme Court of Israel and the Occupied
Territories (2002) State University of New York as cited in Murphy, supra, note 9, at 36.
201
Murphy, supra, note 9, at 38.
202
Israel Core Human Rights Document, supra note 192 at 42, ¶103.
203
Customary law applies as long as it does not contradict any law of the Israeli Knesset (Parliament). See
H.C.J. 785/87 Affo et. al. v. Commander of IDF Forces in the West Bank [1988] P.D. 42(2), 4 as cited in
Israel Core Human Rights Document, supra note 192 at 42, ¶103.
204
H.C.J. 2599/00 Yated - Non-Profit Organization for Parents of Children with Down Syndrome v. The
Ministry of Education [2002] P.D. 56(5), 834 as cited in Israel Core Human Rights Document, supra note
192 at 42, ¶104.
47
the interpretation of national legislation, and serve to further enhance and entrench
international human rights norms in the domestic sphere.”205
This position leads to the common recommendation by international human rights
bodies that Israel incorporate specific, neglected portions of the treaties to which it is
State Party into its domestic law, and in regards to the Syrian Golan, respect its
international human rights law obligations in full.
Israel’s position on its IHRL obligations in reference to the Syrian Golan differs
from its position on the applicability of its IHRL obligations in the West Bank and Gaza
because Israel contends that there is no simultaneous applicability of IHL and IHRL.
Israel is one of the few remaining states to maintain this position.206
It should be noted that in relation to Israel’s human rights reporting obligations
with the United Nations, Israel’s statistics – in line with its position that the Syrian Golan
is part of Israel’s sovereign territory – include the Syrian Golan since 1981 as part of its
northern district, in the Golan sub-district.207
Relationship between IHL and IHRL
In order to understand Israel’s dual obligations related to the right to education in the
territory it occupies, the Syrian Golan, a brief discussion of the relationship between IHL
205
Israel Core Human Rights Document, supra note 192 at 42, ¶104.
See, e.g., Al Haq, et al., Joint Parallel Report to the UN Committee on the Elimination of All Forms of
Racial Discrimination (CERD) on the occasion of the Consideration of Israel’s 14th, 15th and 16th Periodic
Reports on the Implementation of the International Convention on the Elimination of All Forms of Racial
Discrimination, 80th Sess., Feb. 13 – March 9, 2012 (January 30, 2012) available at
http://www2.ohchr.org/english/bodies/hrc/docs/ngos/AL-HAQ_BADIL_ADDMEERWCLAC_Israel_CERD80.pdf, at 7, ¶11-12.
207
See for example CENTRAL BUREAU OF STATISTICS, STATISTICAL ABSTRACT OF ISRAEL, GEOGRAPHICAL
DISTRIBUTION OF THE POPULATION, POPULATION DENSITY PER SQ. KM. OF LAND, BY DISTRICT AND BY
SUB-DISTRICT (2005) available at http://www1.cbs.gov.il/shnaton57/st02_04.pdf. This has also been noted
in numerous reports carried out by the Organization for Economic Co-operation and Development
(OECD), e.g., OECD, Study on the Geographic Coverage of Israeli Data, available at
http://www.oecd.org/dataoecd/2/19/48442642.pdf at 19, ¶53, (“As noted in Para 41, the fundamental
description of the land area covered by “Israel “or “the State of Israel” is provided in the generic
Explanatory Notes in the Statistical Abstract. That description clearly indicates that Israel’s geographic
area, as defined by the Israeli authorities, includes East Jerusalem, since July 1967, and the Golan SubDistrict, since December 1981. The Israeli Settlements in the West Bank are not mentioned in the
description of the “State of Israel", though they are mentioned in metadata on specific statistical
programs.”) See also id. at 22, ¶61 (“Within the [Central Bureau of Statistics] CBS geographic hierarchy,
the entire area of the Golan Heights is identified as a distinct Sub-district, entitled the Golan Sub-district.
Statistics available at the Sub-district level are also available for the Golan Sub-district.”).
206
48
and IHRL is necessary. International Humanitarian Law208 governs the conduct of
hostilities under international law and the protection of civilians and other vulnerable
populations who are affected by warfare. The breadth of humanitarian law (also called
the law of armed conflict) is wide, and it governs all aspects of armed conflict, from the
jus ad bellum (regulations concerning the justifications for war), jus in bello (regulations
concerning how war ought to be waged) to the jus post bellum (regulations concerning
conduct following the cessation of hostilities), in all times and on all types of terrain,
from land warfare to warfare conducted at sea or by air. It has been said, however that
“the bulk of the rules governing the conduct of hostilities has been created for the basic
purpose of protecting certain groups of persons, including peaceful civilians, from the
worst of the hardships in a conflict.”209
208
The majority of International Humanitarian Law is contained in the 1907 Fourth Convention Respecting
the Laws and Customs of War on Land of 18 October 1907, 36 Stat. 2227, T.S. No. 539 [hereinafter:
Hague Regulations] and the 1949 Geneva Convention Relative to the Protection of Civilian Persons in
Time of War (1949) 75 UNTS 287, entered into force on 21 October 1950 [hereinafter: Fourth Geneva
Convention]. The other three Geneva conventions are 1) Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field; 2) Geneva Convention for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; and
3) Geneva Convention Relative to the Treatment of Prisoners of War; all three are dated August 12, 1949.
The text of all four instruments, as well as the full particulars of the committee discussions and plenary
sessions of the 1949 conference, are found in the three volumes of the Final Record of that meeting, as
cited in GERHARD VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY… A COMMENTARY ON THE LAW
AND PRACTICE OF BELLIGERENT OCCUPATION (1957) at p. 25-26 [hereinafter: Occupation of Enemy
Territory]. There are various narratives for what International Humanitarian Law is and why it was created.
Most of them attempt to draw a line of historical trajectory connecting various legal and historical events in
a neat line that leads to the development in the present. Many of these narratives rely upon an assumption
that progress has been made, and connect the building and development of legal institutions and codes (or
legal positivism) to this idea that such actions constitute a step in the right direction. They also in varying
ways use assumptions that international law is developed as a whole, unified body. According to some of
the most commonly cited narratives, IHL has its origins in the St. Petersburg Declaration of 1868, and the
Hague peace conferences of 1899 and 1907, and the Lieber Code of 1863, which only extended to
American soldiers but was nonetheless used as inspiration for several other military codes which served as
the precursor to the 1864 Geneva Convention. See, e.g. Geoffrey Best, Peace Conferences and the Century
of Total War: The 1899 Hague Conference and What Came After, 75 INT’L AFF. 619, 625 (1999) as cited in
Alejandro Lorite Escorihuela, Humanitarian Law and Human Rights Law: the Politics of Distinction, 19
MICH. ST. U. COLL. L. J. INT’L L 299 2010-2011, [hereinafter: Politics of Distinction] at 306; According to
the ICRC’s version of the history of IHL, IHL in its codified form began with the Geneva Convention of
1864, but scattered codes and laws regulating the conduct of hostilities existed for millennia beforehand,
but not in a binding, internationally-recognized, codified format. These included the Viqayet, a code of
warfare from 1280, written during the height of Moorish (Arab-Muslim) rule of Spain. See What are the
Origins of International Humanitarian Law?, INT’L COMM. RED CROSS (Jan 1., 2004) available at
http://www.icrc.org/web/eng/siteeng0.nsf/html/5KZFR8 as cited in Politics of Distinction, at 306.
209
Baxter, Constitutional Forms and Some Legal Problems of International Military Command, 29 BYIL
(1952) at 357-359, as cited in Occupation of Enemy Territory, supra note 208, at 22-23.
49
International Human Rights Law has the noble aim of protecting “everyone,” and
zeroes in most specifically on the most vulnerable categories of people, including those
who are specially protected under international humanitarian law, and others,
guaranteeing everything from the rights of the accused to the right of a people to selfdetermination. Human Rights Law was created in after World War II response to the
horrific abuses of unchecked state power on individuals and members of groups in
violation of their common humanity. As such, on a fundamental level, Human Rights
Law aims to promote the inherent dignity of mankind through the protection individuals
from the abuses of the state. It has expanded from a primary focus on the rights of the
individual to include the notions of collective rights, rights for members of particularly
vulnerable or disadvantaged groups, and into protections of individuals and peoples from
abusive actors other than the state.
While intending to protect “everyone,” human rights have been primarily
articulated, defined and enforced through the organ of the state and its official
representatives. States, not individuals, are signatories to human rights treaties and are
charged with the responsibility for ensuring their respect, even though the system focuses
on the protection, for the most part, of individuals. And states are also responsible to
some degree through their involvement in international legal and judicial organs and
United Nations committees for their enforcement.
It may seem contradictory that a system was created in which states – themselves
the abusers of human rights whose shocking conduct spurred the creation of the system of
international human rights – were charged with guaranteeing that those rights are
protected. Based in part on this critique, more individual-based reporting mechanisms of
human rights violations have been instituted to allow the individual a voice in reference
to its state’s conduct, most relevantly to this study by the Committee on Economic, Social
and Cultural Rights.210 However, one of the most hallowed principles underlying the
international legal system is the notion of state sovereignty, which demarcates limits on
the ways in which violations of human rights within a state can be enforced. In effect,
the human rights system operates around the ability of states to shame other states
210
For more information on complaints procedures, see Office of the High Commissioner for Human
Rights, Human Rights Bodies: Complaints Procedures, available at
http://www2.ohchr.org/english/bodies/petitions/index.htm [last accessed May 16, 2012]
50
through exposing and critiquing other states’ human rights violations, and as such, has
often been a factor leading to charges that the system of human rights is politicized.211
This is often a distinction that is drawn in contrast with the historically neutral character
of humanitarian law, which is guaranteed by a neutral international body, the
International Committee of the Red Cross, as opposed to a Human Rights Committee
comprised of representatives of what in comparison appear to be squabbling states.
Traditionally, it was interpreted that human rights law applied in a time of peace,
while international humanitarian law applied during a time of war.212 However, this
opinion no longer prevails in regards to the application of law during a time of armed
conflict. Very few countries today adopt the doctrine that the two types of law are
mutually exclusive, although of the few that adopt this position, Israel is one.213 While
debates rage over the particulars of how the two bodies of law intersect during a time of
armed conflict, it is now generally agreed that the two apply concurrently during times of
war.214 This has been affirmed in multiple resolutions of the UN Security Council215 and
211
Israel repeatedly alleges that the United Nations system is biased, and that the human rights mechanisms
in particular unfairly “single out” Israel related to its human rights record. Israel often critiques the United
Nations human rights system as being politicized.
212
A more traditional viewpoint was that the laws of armed conflict superseded the laws of IHRL during a
time of conflict, based on a theory of distinction between the laws of peace and the laws of war. See, e.g.,
J. PICTET, HUMANITARIAN LAW AND THE PROTECTION OF WAR VICTIMS, (1975), at 15, as cited in YUTAKA
ARAI-TAKAHASHI, THE LAW OF OCCUPATION: CONTINUITY AND CHANGE OF INTERNATIONAL
HUMANITARIAN LAW, AND ITS INTERACTION WITH INTERNATIONAL HUMAN RIGHTS LAW, 2009 at 402
[hereinafter: Continuity and Change of IHL] (“… the two legal systems (the law of armed conflicts and
human rights) are fundamentally different, for humanitarian law is valid only in the case of an armed
conflict while human rights are essentially applicable in peacetime, and contain derogation clauses in case
of conflict. Moreover, human rights govern relations between the State and its own nationals, the law of
war those between the State and enemy nationals. There are also profound differences in the degree of
maturity of the instruments and in the procedure for their implementation… Thus the two systems are
complementary…. But they must remain distinct, if only for the sake of expediency.”).
213
Despite adopting this stance, the HCJ has considered specific human rights in several cases related to the
OPT, but based on the reasoning that the rights were incorporated into domestic law – so Israel’s state
practice is not exactly consonant with its position on the applicability of IHRL treaties. See, e.g., H.C.J.
1890/03, Bethlehem Municipality & 21 others v. The State of Israel – Ministry of Defense, Supreme Court
of Israel Sitting as the High Court of Justice (February 3, 2005) (Isr) (discussing competing claims of rights
to freedom of religion and freedom of movement). Further, the HCJ has ruled occasionally that IHL and
IHRL apply concurrently in the OPT. See, HCJ 769/02, Public Committee against Torture in Israel et al. v.
Government of Israel et al., Supreme Court of Israel sitting as the High Court of Justice (December 2006)
(Isr.) as cited in Program on Humanitarian Policy and Conflict Research, From Legal Theory to Policy
Tools: International Humanitarian Law and International Human Rights Law in the Occupied Palestinian
Territory (Policy Brief: May 2007), available at
http://www.hpcrresearch.org/sites/default/files/publications/IHRLbrief.pdf
214
Some of the earliest articulations of the position that human rights applied during times of occupation
and armed conflict were related to Israel and its actions within the territories it occupied. For example, in
51
General Assembly,216 as well as three times by the International Court of Justice in
separate advisory opinions.217
This position of parallel applicability might seem confusing, since IHRL and IHL
have unique and fundamental characteristics that pose some difficulties for the potential
for them to govern conduct simultaneously. These include some of the most basic
premises behind the bodies of law, and could cause some to see the two bodies as so
divergent as to be irreconcilable. For example, the jus in bellum regulations mentioned
previously govern the ways in which war should be waged. Warfare, by its nature, even
in a situation in which it is most optimally regulated and controlled, is an exceptional
state that goes outside the norm, by definition causing extreme destruction, loss of life,
maiming, and destruction of property. During times of peace, such situations would
constitute violations of international human rights law of the most extreme nature.218 It
seems almost bizarre that human rights could coexist at the same time as war, when a
state of war is itself a violation of the human rights of individuals on a grave scale; and
yet, to take the opposite approach, one could find it absurd if human rights did not apply
during a time of war. Disallowing the application of human rights law could be viewed
1967, the UN Security Council stated, “essential and inalienable human rights should be respected even
during the vicissitudes of war,” in GA Res. 237, ¶2, preambular ¶2, UN Doc. A237/1967, June 14, 1967.
See also GA Res. 2252 (ES-V), UN Doc. A2252/ESV, July 4, 1967, which refers to this resolution, as cited
in Cordula Droege, The Interplay Between International Humanitarian Law and International Human
Rights Law in Situations of Armed Conflict, 40 ISRAEL L. REV. 315 (2007) [hereinafter: Interplay Between
IHL and IHRL]. One year following this resolution, the Tehran International Conference on Human Rights
represented the United Nations’ adoption of the phrase “human rights in armed conflict,” which was used
in a series of resolutions following the first resolution of the Tehran conference, which was entitled
“Respect and Enforcement of Human Rights in the Occupied Territories,” Final Act of the International
Conference on Human Rights, UN Doc. A/Conf.32/41 (Apr. 22-May 13, 1968).
215
See, e.g., S.C. Res. 1019, UN Doc. S/RES/1019 (Nov. 9, 1995) and S.C. Res. 1034, UN Doc.
S/RES/1034 (Dec. 21, 1995)(in regard to Former Yugoslavia); S.C. Res. UN Doc. S/RES/1635 (Oct. 28,
2005) and S.C. Res. 1653, UN Doc. S/RES/1653 (Jan. 27, 2006)(Great Lakes region) as cited in Interplay
Between IHL and IHRL, supra note 214, at 316.
216
See, e.g., G.A. Res. 50/193, UN Doc. A/RES/50/193 (Dec. 22, 1995)(Former Yugoslavia); G.A. Res.
3525 (XXX), UN Doc. A/3525 (Dec. 15, 1975)(territories occupied by Israel); G.A. Res. 46/135, UN Doc.
A/RES/46/ 135 (Dec. 19, 1991)(Kuwait under Iraqi occupation); G.A. Res. 52/145, UN Doc.
A/RES/52/145 (Dec. 12, 1997)(Afghanistan) as cited in Interplay Between IHL and IHRL, supra note 214,
at 316.
217
Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, ICJ, 8 July 1996 [hereinafter: ICJ
Use of Nuclear Weapons]; Judgment, Case Concerning Armed Activities on the Territory of the Congo,
ICJ, 19 December 2005; Advisory Opinion, Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, ICJ, 9 July 2004.
218
INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS (Henry J. Steiner et al. ed.,
Oxford University Press 3rd) (2007) [hereinafter: Law, Politics, Morals].
52
as abandoning people when they are the most vulnerable and the most in need of their
protection. The balance of these two points of view suggests that, however contradictory
the two bodies of law might seem, it makes the most sense to apply human rights law and
humanitarian law simultaneously, attempting to guarantee to the best of the law’s ability
the protection of those most affected by warfare in an extraordinary situation such as
conflict.
While now understood that both sets of laws apply simultaneously, questions
(especially in light of the above tensions between the two bodies of law) are raised as to
the practical application of legal norms from the two bodies of law in specific situations.
One approach that has been advocated in relation to dealing with the parallel application
of IHL and IHRL focuses on the “complementarity between their norms in most cases
and prevailing of the more specific norm when there is contradiction between the two.”219
This is the approach that the ICJ has arguably adopted in its advisory opinions that
reference the relationship between IHL and IHRL.220
For example, when legal obligations conflict, questions are raised as to which law
supersedes the other. To answer this question, scholars look to the doctrine of lex
specialis. The full phrase is lex specialis derogat generali, meaning that a specific rule
should take precedence over a general rule.221 In the ICJ’s 1996 Advisory Opinion on the
Threat or Use of Nuclear Weapons, the ICJ affirmed the lex specialis—lex generalis
relationship between the two bodies of law, explaining that the right to life must be
interpreted through the rules of humanitarian law such as proportionality, indiscriminate
use of force, and precautionary measures as outlined under IHL,222 so that international
humanitarian law is lex specialis to international human rights law in relation to the right
to life.223 Horowitz explains that this means that:
219
Interplay Between IHL and IHRL, supra note 214, at 312.
Elizabeth Mottershaw, Economic, Social and Cultural Rights in Armed Conflict:
International Human Rights Law and International Humanitarian Law, 12 INT’L. J. HUM. RTS. 457
(2008) [hereinafter: Rights in Armed Conflict].
221
“Comment on Relationships Between International Human Rights and Humanitarian Law,” in Law,
Politics, Morals, supra note 218, at 395.
222
Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, ICJ, 8 July 1996, para. 25 as cited
in Jonathan Horowitz, Human Rights, Positive Obligations, and Armed Conflict: Implementing the Right to
Education in Occupied Territories, 1 INT’L HUMAN. LEGAL STUD. 306–307 (2010) [hereinafter: Right to
Education].
223
Id.
220
53
where obligations that an occupant has to human rights law and occupation law
overlap, human rights obligations remain applicable but must be interpreted
through international humanitarian law. This is because international
humanitarian law is more appropriately tailored for the situation under inspection,
namely occupation.224
In a later opinion, the Court posed three options in relation to how IHL could
relate to IHRL more broadly: some rights could be only issues of IHL, some of IHRL,
and some both.225
Some have argued that in its opinion on the Legality of the Construction of a Wall
in the Occupied Palestinian Territory, the ICJ indicated that in the case of certain rights –
for example, certain economic, social and cultural rights such as the right to education –
human rights law provides for the more specific articulation of a right.226
Some, such as commentators Doswald-Beck and Vite in the International Review
of the Red Cross, have argued that:
The major legal difference is that humanitarian law is not formulated as a series of
rights, but rather as a series of duties that combatants have to obey. This does
have one very definite advantage from the legal theory point of view, in that
humanitarian law is not subject to the kind of arguments that continue to plague
the implementation of economic and social rights.227
This theory however is based on a distinction between economic, social and
cultural rights and civil and political rights that has been displaced by a newer
understanding of the character of the rights. The original theory was that economic,
social and cultural rights imposed positive duties on states, whereas civil and political
rights primarily imposed negative duties on states. This conceptual understanding has
been displaced by wider acceptance of the idea that both sets of rights impose both
positive and negative duties on states, and that the types of rights are closer in character
224
Id., at 236
Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, ICJ, 9 July 2004, para. 106.
226
This is the interpretation of the ICJ decision presented in Rights in Armed Conflict, supra note 220, at
457. Mottershaw argues, “… the ICJ’s formulation in the wall opinion ‘might be understood to mean that
the human rights law obligations would remain of primary relevance.’ In fact, where human rights law
provides more detail – and in the case of economic, social and cultural rights it does – this is the only way it
can be understood. The rights are clearly a matter of both and it is self-evident that the law that provides
most detail will have the most relevance.”
227
Louise Doswald-Beck & Sylvain Vite, International Humanitarian Law and Human Rights Law, 293
INT’L REV. RED CROSS 94–119 (1993) as cited in Law, Politics, Morals, supra note 218, at 459.
225
54
than originally argued.228 Others have argued that humanitarian law does not simply
impose duties or obligations on states, but also implies certain rights.229
The laws of occupation – a subset of IHL in which one warring army takes
territory of its enemy party under its control – also has unique characteristics which
complicate its simultaneous function with IHRL. The thrust of the law of occupation is
related to the maintenance of the status quo within a territory, during a time in which an
enemy power within an armed conflict holds a territory while it continues to wage war
against the territory’s sovereign. This status, while as will be explained later has
developed and changed in recent years, perhaps in response to the increasing importance
of human rights protection, has been seen as in conflict with the transformative notion of
a state’s human rights obligations. As mentioned previously, states are obligated under
human rights law to take both positive and negative legal measures to ensure the
protection of human rights. The primary problem arises in regards to the state’s positive
obligations, acts that can often involve legally disruptive and intrusive measures such as
the overhaul of legislation or the creation of new institutions in a territory. Occupiers,
under international law, are traditionally prohibited from interfering in these more
permanent ways with the territory, a principle that has been termed the conservationist
principle.230 And yet, under the guise of fulfilling human rights obligations that allow for
the Occupying Power to make sweeping but unnecessary changes to a territory under its
control, the Occupier can act for its sole benefit, against the wishes of the population.231
These tensions will be discussed more specifically within the context of the right
to education as it relates to the competing obligations states have when both sets of law
apply. And the distinctions in the two fields of law – the law of occupation under IHL,
and the right to education under IHRL – will be handled in this study through a dual
228
Rights in Armed Conflict, supra note 220, at 455.
One example of this is Article 13 of the Third Geneva Convention, related to the humane treatment of
prisoners of war, which Greenwood argues ‘implicitly states a right’, as cited in Rights in Armed Conflict,
supra note 220, at 455-456.
230
Roberts describes it as follows: “the cautious, even restrictive assumption in the laws of war (also called
inter- national humanitarian law or, traditionally, jus in bello ) that occupying powers should respect the
existing laws and economic arrangements within the occupied territory, and should there- fore, by
implication, make as few changes as possible. This conservationist principle in the laws of war stands in
potential conflict with the transformative goals of certain occupations.” Adam Roberts, Transformative
Military Occupation: Applying the Laws of War and Human Rights, 100 Am. J. Int’l L. 580, 2006, at p.
580
231
Right to Education, supra note 222, at 307
229
55
emphasis on the obligations that both sets of law have in common, namely the positive
legal obligations that are imposed on states by the right to education and the duties of
states related to education under IHL.
Extraterritorial Application of Human Rights in Occupied Territories
According to Horowitz, the idea that extraterritorial application of human rights applies
in occupied territories is based on:
the general notions that 1) a state has obligations under human rights treaties to
the people within its jurisdiction, 2) that the territorial jurisdiction is extended to
the areas that a state has ‘effective control’ over, and 3) in an occupied territory,
as defined in Article 42 of the Hague Regulations, is under the ‘effective control’
of the Occupying Power.232
As indicated by the above, the notion of territory under which a state has
“effective control” is a conditio sine qua non (or requisite condition) of whether a
territory is under belligerent occupation. Once it is determined that an area is under the
“effective control” of a belligerent power, it can be demonstrated that the threshold has
been met that determines whether human rights norms apply in those areas. As such, the
notion of “effective control” will be explained in the context of the Syrian Golan in the
following section on whether the Syrian Golan is occupied.233
While discussions of the extraterritorial application of human rights have
primarily revolved around discussions of the application of civil and political rights, the
ICJ has stated that the Covenant on Economic, Social and Cultural Rights as well as the
Convention on the Rights of the Child must be applied extraterritorially during times of
occupation if the state is party to those treaties.234
232
Id., at 236. Horowitz also notes in his footnote that an extensive discussion of domestic and Strasbourg
case law on the extraterritorial application of human rights see Al Skeini v. Secretary of State for Defence
[2004] EWHC 2911 (QB), and the Court of Appeal, [2005] EWCA Civ 1609.
233
Opposition to this point of view has been expressed by the UK in the Al-Skeini case, in which it
advocated the point of view that “effective control” has different meanings within IHL versus IHRL.
However, a majority of international lawyers writing on the subject of IHL and IHRL disagree with this
approach.
234
From footnote, “The Court also notes that this view has been advanced by the Committee on Economic,
Social and Cultural Rights.” Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, International Court of Justice (ICJ), Advisory Opinion, 9 July 2004, paras. 112, 113 and 114 as
cited in Right to Education, supra note 222, at 236. This position of the ICJ was not unanimous; In a
separate opinion, Judge Rosalyn Higgins stated: “So far as the International Covenant on Economic, Social
and Cultural Rights is concerned, the situation is even stranger, given the programmatic requirements for
the fulfillment of this category of rights,” as cited in Law, Politics, Morals, supra note 218, at 469.
56
Questions have also been raised as to the degree of responsibility an occupant has
to the occupied population compared with its own population. The Human Rights
Committee in General Comment 31 commented on this matter in relation to the ICCPR,
advocating an expansive definition of rights-holders under the terms of the treaty. Under
their interpretation, Covenant rights must extend not simply to the citizens of States
Parties to the ICCPR, but to “all individuals, regardless of nationality or statelessness,”
including those within the effective control of a State Party “acting outside its
territory.”235 Based on this evidence, Horowitz concluded that “generally speaking, it
is.”236
As previously discussed, the right to education is seen as a basic, inalienable
human right as evidenced in its inclusion in some of the basic international human rights
treaties, as will be demonstrated below. Specifically, it is seen as “binding under all
circumstances and to be protected in all situations, including crises and emergencies
resulting from civil strife and war.”237
Some have taken the existence of derogation clauses in human rights treaties as
evidence that human rights norms are expected to apply in all situations, with only
certain, specified exceptions. For example, in the ICCPR, derogation from certain rights
is permitted in times “of public emergency which threatens the life of the nation.”238
Mottershaw notes that the ICESCR does not have any such derogation provision, which
could be more logically taken to mean that economic, social and cultural rights apply at
all times including during times of armed conflict, than to read a prohibition into the text
where there was none.239 She also notes that the drafters of the ICESCR found a
derogation clause unnecessary, since they believed that Article 2(1) governing the general
235
UN Human Rights Committee (HRC), General comment no. 31 [80], The nature of the general legal
obligation imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13 as cited in
Right to Education, supra note 222, at 237.
236
Id., at 237.
237
REPORT ON THE STRATEGIC PARALLEL SESSION ON EDUCATION IN SITUATIONS OF EMERGENCY AND
CRISIS (International Committee of the Red Cross) (2000).
238
ICCPR, supra note 331 at Art. 4, as cited in John Cerone, Human Dignity in the Line of Fire: the
Application of International Human Rights Law During Armed Conflict, Occupation, and Peace
Operations, 39 VAND. J. TRANSNAT’L L. 1453 (2006).
239
Rights in Armed Conflict, supra note 220, at 457.
57
applicability of treaty obligations was “sufficiently flexible,”240 and may have seen the
nature of economic, social and cultural rights, found “the case for derogation as ‘less
compelling’.”241
Legal Status of the Syrian Golan
Applicability of IHL and Occupation Law
The Syrian Golan Heights is considered occupied under international law, and as such is
subject to the laws of international humanitarian law and a subset of that law, which is
the law of belligerent occupation. However, because occupation law is complex and the
Syrian Golan Heights’ legal status is contested by Israel, this paper will consider the
question of whether the Syrian Golan Heights is considered occupied under international
law, and if so, what recent developments in the law of occupation have meant for the
topic of education under occupation.
What is an “occupied territory” according to international law?
Occupation is a subset of International Humanitarian Law (also known as the Law of
International Armed Conflict or LOIAC) that has a long history in the legal tradition.
Throughout history, it has been essentially determined through facts, 242 and is defined
under the Hague Regulations in Article 42.
Article 42 of the Hague Convention states: “Territory is considered occupied
when it is actually placed under the authority of the hostile army. The occupation extends
only to the territory where such authority has been established and can be exercised.”243
As explained by Dinstein, the second paragraph indicates two clear conditions for
whether a territory is considered occupied:
(i)
“the establishment of authority by the Occupying Power as a matter of
fact (‘has been’)
(ii)
the ability of the Occupying Power to exercise that authority (‘can’)”244
240
M. C. R. CRAVEN, THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS: A
PERSPECTIVE ON ITS DEVELOPMENT 27 (1995) as cited in Rights in Armed Conflict, supra note 220, at 451.
241
Philip Alston & Gerard Quinn, The Nature and Scope of States Parties’ Obligations under the
International Covenant on Economic, Social and Cultural Rights, 9 HUM. RTS. Q. 217 (1987) as cited in
Rights in Armed Conflict, supra note 220, at 451.
242
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 29.
243
The Hague Regulations, supra note 208, at Art. 42.
58
It has been noted by commentators that every area within the territory under the control
of the invading forces does not need to be physically occupied in order to establish a state
of effective occupation.245 For example, an occupation by the only the air force of the
occupying state might rise to the definition of effective occupation.246 One such
commentator, von Glahn, noted that, “as long as the territory as a whole is in the power
and under the control of the occupant and as long as the latter has the ability to make his
will felt everywhere in the territory within a reasonable time, military occupation exists
from a legal point of view.”247
The notion of the degree of the invader’s control over the territory is often
encapsulated by the phrase “effective control.” The notion of effective control is tied in
with the notion of occupation, since effective control is a prerequisite for defining a
territory as being occupied. Determining what constitutes effective control has been a
matter discussed by legal commentators:
The test for effective control is not the military strength of the foreign army which
is situated outside the borders that surround the foreign area. What matters is the
extent of that power's effective control over civilian life within the occupied area;
their ability, in the words of Article 43 of the Hague Regulations, to 'restore and
ensure public order and civil life.248
This has been interpreted to mean when:
[territory] is actually placed under the authority of the hostile army… Thus there
is assumed an invasion of the enemy state, resisted or unresisted, as a result of
which the invader has rendered the enemy government incapable of publicly
exercising its authority; the invader has successfully substituted his own authority
for that of the legitimate government in the territory invaded. Invasion as such
does not ordinarily constitute occupation, although it precedes it and may coincide
with it for a limited period of time. In other words, while invasion represents
mere penetration of hostile territory, occupation implies the existence of a definite
244
YORAM DINSTEIN, THE INTERNATIONAL LAW OF BELLIGERENT OCCUPATION 42 (2009) [hereinafter:
Belligerent Occupation].
245
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 28.
246
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 28-29. His idea of an “air force occupation” at
the time was a theoretical one, as certain conditions would need to be met in order to establish control over
the territory even in this case. See p. 28.
247
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 29.
248
Eyal Benvenisti, Responsibility for the Protection of Human Rights under the Interim IsraeliPalestinian Agreements, 28 ISR. L. REV. 297, 308–09 (1994) [hereinafter: Protection of Human Rights].
59
control over the area involved. In the former case, the invading forces have not
yet solidified their control to the point that a thoroughly ordered administration
can be said to have been established.249
In addition to being misunderstood, the requirements for what constitutes the
“effective control” threshold that makes up an essential component that determines
whether a territory is under belligerent occupation itself can be complex. As noted by
Dinstein, whether the control of an occupier is “effective” as per the requisite standard is
highly subjective, since even what constitutes “effective” control as required by IHL
could vary based on a number of factors including everything from the terrain of the area
to the displaced sovereign’s prior degree of control.250 And while the opinions of
authoritative international bodies such as the ICRC, the ICJ, and the UN Security Council
can be persuasive, these opinions themselves are not binding, except those issued by the
Security Council under Chapter VII of the UN Charter.251
Occupation must be maintained “in every respect” by the occupying forces in
order for the territory to continue being in a state of belligerent occupation. 252 In other
words, simply demonstrating that a de facto state of occupation has occurred is not
sufficient to determining that it continues. The determination, however, is a factual one,
and so the factual circumstances and degree of control of the occupant must be
continually analyzed in order to determine whether a territory remains under occupation.
Despite the consistency of the legal definition of “Occupation,” as a term the
definition has become increasingly complicated, both politically and legally. Its usage in
recent years in particular has demonstrated that occupants and alleged occupants
themselves dispute the meaning of the term and its applicability to their particular
situation.253 Since the ascendancy of the principle of self-determination in international
249
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 28.
250
Belligerent Occupation, supra note 244 at 44.
251
It is widely accepted that UN Security Council Resolutions based on Chapter VII of the UN Charter are
legally binding on all members of the United Nations.
252
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 29.
253
For example, in the 2003 US and UK-led invasion of Iraq, despite their declaration that they would
“strictly abide by their obligations under international law, including those relating to the essential
humanitarian needs of the people of Iraq,” did not explicitly refer to themselves as occupants or their
conduct in Iraq as rising to the legal level of “occupation.” Letter from the Permanent Representatives of
60
law, a principle that is enshrined in the founding documents of the United Nations, and
the processes of decolonization undertaken by members of the United Nations after its
founding, foreign occupation has increasingly been characterized as illegal and equated
with colonization.254 The political stigma therefore associated with the term occupation
has further clouded the term’s meaning in recent years. As has been noted by scholars
such as Yoram Dinstein, belligerent occupation itself is not necessarily illegal.255
However, there is evidence to suggest that such a category of occupations – illegal
occupations – does exist, as has been noted by statements by Kofi Annan, former UN
Secretary General, and the UN Security Council.256
Is the Syrian Golan under Israel’s effective control and occupied according to IL?
The Syrian Golan Heights has been declared occupied according to international law by
authoritative institutions such as the United Nations Security Council for years. The
rationales for declaring it occupied are as follows:
Israel captured the Syrian Golan during the course of the war between Israel and
Arab states in 1967. This was territory acquired by force in contravention of the UN
Charter.
the United Kingdom of Great Britain and Northern Ireland and the United States of America, to the United
Nations, addressed to the President of the Security Council, UN Doc. S/2003/538 (May 8, 2003)
as cited in Protection of Human Rights, supra note 248 at ix. See also the statement by W. Hays Parks,
Special Assistant to the Army Judge Advocate General, who said,
“The term ‘military occupation’ is one of those that’s very, very misunderstood. When you are an infantry
company commander, and you’re told to take the hill, you physically occupy it. That’s military occupation
with a smaller-lower-case ‘m’ and lower-case ‘o.’ It certainly does not mean that you have taken over it
with the intent to run the government in that area. That’s the very clear-cut distinction, that until theusually, until the fighting has concluded and is very conclusive, do you reach the point where technically
there might be Military Occupation – capital ‘M,’ capital ‘O’- and a declaration of occupation is issued.
That’s a factual determination; it’s a determination by the combatant commander in coordination with
others, as well. Obviously, we occupy a great deal of Iraq at this time. But we are not, in the technical
sense of the law of war, a military occupier or occupation force.” United States Department of Defense
News Transcript, Briefing on Geneva Convention, EPW’s and War Crimes (Apr. 7, 2003),
http://www.au.af.mil/au/awc/awcgate/dod/t04072003_t407genv.html, as cited in Protection of Human
Rights, supra note 248 at ix
254
Yutaka Arai-Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian
Law, and its Interaction with International Human Rights Law, 2009 at p. 4. This perspective of equating
occupation with colonization can also be found in the academic writings of residents of the Golan.
255
Belligerent Occupation, supra note 244 at 2.
256
Annan asks Israel to end occupation: First use of term “illegal,” DAWN, Mar. 13, 2002,
http://archives.dawn.com/2002/03/13/int1.htm; Yael Ronen, Illegal Occupation and its Consequences (Aug.
2007) (unpublished manuscript, available at
http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=yael_ronen).
61
The occupation has continued. No legal facts determining that the occupation has
ceased have arisen. For example, Syria and Israel continue to be at a state of war; no
peace treaty has convened between the two parties; and Israel’s Golan Heights Law
extending Israeli civil law and sovereignty over the Syrian Golan has been declared “null
and void” according to the U.N. Security Council, and is therefore irrelevant to a
determination of legality. This determination that the effective annexation was null and
void can be explained by the reasoning that customary international humanitarian law
indicates that an occupation must be temporary.257 Derived from this is the idea of a
principle of “non-annexation,” which is the principle adopted here by the United Nations.
The justification for calling the Syrian Golan illegally annexed, as stated previously,
relies on the idea that International Humanitarian Law prohibits the acquisition of
territory by force. The annexation (which is referred to as a de facto annexation since it
is a legal fact despite Israel’s refusal to term it an annexation) is illegal under
international law258 and as such has been condemned by the United Nations and most
nations of the world.259 Israel has effective control over the territory, as evidenced by its
257
The unilateral annexation of a territory is illegal according to customary law derived from the principle
in International Humanitarian Law that occupation should be temporary, see A. Roberts, Transformative
Military Occupation: Applying the Laws of War and Human Rights’ (2006), 100 American Journal of
International Law, p. 580 at 583 as cited in Dr. Ray Murphy and Declan Gannon, Changing the Landscape:
Israel’s Gross Violations of International Law in the Occupied Syrian Golan. Al-Marsad – Arab Centre for
Human Rights in the Occupied Golan, November 2008 at 35. Also discussed in Protection of Human
Rights, supra note 248 at xi, in discussing UN Security Council Resolution 1483 states, ‘occupation is a
temporary measure for reestablishing order and civil life after the end of active hostilities, benefiting also,
if not primarily, the civilian population…occupation does not amount to unlawful alien domination that
entitles the local population to struggle against it.”
258
The unilateral annexation of a territory is illegal according to customary law derived from the principle
in International Humanitarian Law that occupation should be temporary, see A. Roberts, Transformative
Military Occupation: Applying the Laws of War and Human Rights’ (2006), 100 American Journal of
International Law, p. 580 at 583 as cited in Dr. Ray Murphy and Declan Gannon, Changing the Landscape:
Israel’s Gross Violations of International Law in the Occupied Syrian Golan. Al-Marsad – Arab Centre for
Human Rights in the Occupied Golan, November 2008 at 35.
259
Numerous United Nations resolutions have documented the illegality of the Israeli occupation of the
Syrian Golan, including UN Security Council Resolution SRES242 of 22 November 1967 calls for the
withdrawal of Israeli armed forces from the territories occupied in the 1967 war, which include the Syrian
Golan. The United Nations Security Council, General Assembly and Economic and Social Council have
all declared Israel’s decision to impose its laws, jurisdiction and administration on the occupied territories
without legal effect (null and void) under international law, including U.N.S.C. Resolutions 242 (1967),
Resolution 338 (1973), and Resolution 497 (1981); UN GA Resolution 61/27 (1 December 2006) and
Resolution 61/118 (14 December 2006); ECOSOC 6309 as cited in UN Information Service, “Economic
and Social Council adopts texts on Palestinian people, Independence for colonial countries, social
development,” 26 July 2007 as cited in Norwegian Refugee Council, International Displacement
Monitoring Centre, Syria: forty years on, people displaced from the Golan remain in waiting, 31 October
2007 at 8.
62
administration of the territory in virtually every aspect of residents’ daily lives. From a
military standpoint, the IDF also operates from the Syrian Golan and can make its
presence felt to the occupied population within a very short period of time, in further
support of the notion that Israel has effective control over the Syrian Golan.
Are IHL and IHRL simultaneously applicable to the Occupied Syrian Golan?
The Occupied Syrian Golan, therefore, is governed by both the rules of International
Humanitarian Law in addition to International Human Rights Law.260 It has been
demonstrated most clearly by the International Court of Justice in its 2004 Advisory
Opinion that humanitarian law in addition to human rights law applies in relation to
Israel’s conduct in the occupied territories. The Court stated, “the protection offered by
human rights conventions does not cease in case of armed conflict, save through the
effect of provisions for derogation of the kind to be found in Article 4 of the International
Covenant on Civil and Political Rights.”261
Israel, as party to several human rights conventions, is obligated under those
conventions to all of its provisions (provided that no reservation was made by Israel at
the time of its ratification). Additionally, each state must abide by its treaty obligations
in all of its territory in addition to all areas under its effective control. The occupied
territories including the Occupied Syrian Golan fall under the definition of territories
under Israel’s effective control.
Applicability of Fourth Geneva Convention
Israel has disputed the applicability of the Fourth Geneva Convention to the
occupied Palestinian territories on the basis of several arguments that mainly have to do
with the prior sovereignty of those territories. Israel bases this argument on an
interpretation of the wording of a provision of the Fourth Geneva Convention, and on its
260
The international system of states is governed by (and itself creates) international law. The rights of
individuals on the international plane are primarily governed by a regime of “interrelated, interdependent”
human rights, and the law regulating war as well as that which explicates states’ obligations to protect and
provide for civilians during conflict is contained in international humanitarian law. These broad categories
of international law are derived from several primary sources – notably treaties (such as those enumerating
the rights and obligations of international human rights and humanitarian law), customary international law,
general principles of law, and the works of jurists (at a supplementary level). The most authoritative
illustration of the sources of international law is found in STATUTE OF THE INTERNATIONAL COURT OF
JUSTICE art. 38, para. 1(a).
261
International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territories, 2004
63
contention that only some of the provisions of the Fourth Geneva Convention have arisen
to the status of customary law. However, because the prior sovereignty of the Syrian
Golan was not in question, these arguments are not relevant here. The applicability of the
Fourth Geneva Convention to the Occupied Syrian Golan has been affirmed by numerous
UN resolutions mentioned previously in this paper.
Problem of Education in an Occupied Territory
“Education’s best claim is that it teaches a person to value what deserves to be
valued.”
William James
Education holds an important rhetorical place in our globalized world. As an
empowerment right, education has been alternately viewed as a stimulator of good and of
evil, but both its critics and champions appear to hold the same opinion about its power,
believing in education’s ability and potential to create either angels or monsters. Some
(such as UN Special Rapporteur on the right to education Katarina Tomasevski) have
called education “the message carrier,”262 allowing for both society’s latent and manifest
messages to be passed along to its members by means of institutions of education,
educational curricula, and what some social scientists call the “hidden curriculum”263
experienced in what schools promote and fail to promote, in what they emphasize and
how they emphasize it, and in what they ignore and conceal. Education has been charged
with creating both good and evil citizens, promoting and institutionalizing societal evils
such as racial discrimination and promoting societal “good” such as democratization, and
being used as a tool for peace and for war and violence, up to and including inciting
genocide.
Governments, including colonial powers, and their militaries have long attempted to
persuade populations through the control, manipulation, or “reform” of a country’s
educational systems. Particularly after World War II, American writers located in
education the site of the attitude of hatred that created the conditions leading to the
262
KATARINA TOMASEVSKI, EDUCATION DENIED: COSTS AND REMEDIES 184 (2003) [hereinafter: Education
Denied].
263
For an overview of the origins of the term “hidden curriculum,” see Stephen J. Farenga & Daniel Ness,
Encyclopedia Of Education And Human Development 1 (2005) at 16.
64
horrors of the Holocaust in Europe. They called for “re-education” or what came to be
called “re-orientation” of the populations in countries formerly controlled by the Axis
powers, leading to sweeping military-led changes in the educational systems in those
countries in an effort to “educate away” their intolerant attitudes toward minorities.264
Other examples abound, all tied together by a common experience of promoting
intolerance and difference on the basis of race, whether or not the racial groups
demonized were present in the classroom or relegated to a separate educational
institution.265
Citizenship education, in particular multicultural and democracy-promoting
citizenship education, has been the focus of much of recent scholarship on curricular
reform and educational reform in the West, particularly in the United States. National
education serves multiple objectives within a democratic nation state, most notably the
aim of nation building by means of socializing the state’s population (particularly youth)
to serve as good citizens. State compulsory educational curricula are designed with these
aims in mind, most notably that of inculcating the values and perceptions of the dominant
group and cultivating loyalty to the state. The content of education therefore can serve as
a map, instructing us in the state’s primary goals for its citizens.
In the state of Israel, for instance, the state’s “Jewish and Democratic” character bled
into its goals for citizenship education, generating an approach dedicated to the
cultivation of “education for Zionist citizenship”.266 The state attempted to at the same
time promote Israeli nationalism and democracy, but remains trapped in a race and
religion-centered debate concerning how much emphasis should be placed on
“universalistic” or plural values versus “national” or specifically Zionist values.267 This
264
After the Rwandan genocide, in which members of the majority national ethnic group massacred
members of the ruling minority ethnic group, many looked for answers in the education system, which
systematically and “scientifically” presented historiographic, colonial-inspired racial divisions as inherent,
presenting a racial hierarchy of minority over majority that proved to be fatal. And in apartheid-era South
Africa, one of the most well-known means of racial segregation was through the education system, which –
again inspired by European colonial visions – attempted to divide the nation based on religion and race, and
through the “Bantu Education Act”, segregated all black Africans into separate and inferior schools on the
basis of their “inherent inferiority” to the “civilized” white, Afrikaaner South African of European descent.
265
Education Denied, supra note 262.
266
Orit Ichilov, Gavriel Salomon and Dan Inbar, Citizenship Education in Israel – a Jewish-Democratic
State. Israeli Institutions at the Crossroads at 31.
267
Orit Ichilov, Gavriel Salomon and Dan Inbar, Citizenship Education in Israel – a Jewish-Democratic
State. Israeli Institutions at the Crossroads at 31.
65
is particularly an issue in a society with minorities such as non-Jews (who are primarily
Arab) that do not fit into the national ideology and who even dispute to varying degrees
the state’s foundation.
States, Israel among them, which according to sociologists serve as the “site of on
going conflicts among and between various class, gender and racial groups”268 even in
the most manifestly democratic societies are run by a dominant group of decision-makers
who control schools and decide on educational content. And as in any decision, a
decision for something contains a latent decision against something else.
What schooling systematically does is to valorize…some values, perspectives,
ways of speaking, showing, and saying as if they really were Value, Validity,
Language – and thus to render all other ways of life/thought/feelings/embodiment
as invalid in comparison with what is passed off as neutral, natural, universal and
obvious. Other ways (in all senses) are diluted, denied, distorted, above all – deformed; that is they are refused recognition as really alternative approaches to
understanding social identity in relation to specific combinations of space and
time.269
As in this conceptualization of education and the quote by William James, one of the
founders of modern psychology, education has the potential to simultaneously legitimize
and de-legitimize perspectives, and very often legitimizes the majority viewpoint at the
expense of minority perspectives. It is this capacity of the dominant group in a nation
state to de-form contrasting perspectives of minority groups through public education that
serves as the impetus for this inquiry.
In a situation of long-term or prolonged occupation, attempts by a nation-state to
promote nationalist values linked to the occupying nation are complicated. In other
occupations such as the Japanese occupation of Korea, the Ethiopian occupation of
Eritrea, the American occupations of Iraq and Afghanistan, or the Chinese occupation of
Tibet, similar waves of protest and resistance have occurred by residents under
occupation who are resentful of the attempt of the occupying power to assimilate them.
This also fits into narratives of postcolonial resistance, where often culture serves as the
268
Henry A. Giroux, Theories of Reproduction and Resistance in the New Sociology of Education: a
Critical Analysis, 53 HARV. EDUC. REV. 257–293 (1983) as cited in Shmuel Shamai, Critical Sociology of
Education Theory in Practice: the Druze Education in the Golan. British Journal of Sociology of Education.
Vol. 11, No. 4, 1990 at 450.
269
Race/ethnicity/gender/culture: embodying differences educationally: an argument, in BREAKING THE
MOSAIC 20–30 as cited in Shmuel Shamai, Critical Sociology of Education Theory in Practice: the Druze
Education in the Golan. British Journal of Sociology of Education. Vol. 11, No. 4, 1990 at 450-1.
66
site of conflict. Since culture is taught in public schools run by the occupying power, and
public schools are one of the most pervasive institutions of an occupying power in its
attempt to socialize citizens, public schools often become symbolic sites of conflict
between those attempting to resistant and those attempting to control a population.
Motives on both sides can appear malicious to those on the other side, but both can be
justified.
One final note should be highlighted in relation to the teaching of historical events.
While competing versions of history exist in reality, states typically choose one narrative
to teach their students, one specific version of events. Sometimes, states even omit key
events, particularly related to their own country’s mistakes, suffering from what
researcher David Tyack calls the ‘pedagogy of patriotism,’ “rarely describing abuses
committed by one’s own government against populations of other countries or the people
in one’s own country, although history abounds with such examples.”270 There are
particular challenges facing states when it comes to addressing difficult parts of the
state’s history, and states often suffer from the blindness that can accompany their sense
of victimization, propagating one-sided viewpoints.271 States also at times use such
negative expressions as xenophobia to attempt to inculcate a sense of patriotism among
their population,272 and believe that the history and geography curriculum they teach is
objective – a quality that as Tomasevski aptly states, “is as impossible as it is
widespread.”273
General Characteristics of Occupation Law
Legal Instruments
Most of occupation law is contained in the Hague Regulations and the Fourth Geneva
Convention, although state practice can be found in military manuals and other
authoritative documents used to instruct armies on the laws. Occupation law in one of its
most essential characteristics aims to protect and preserve the status quo. It allows an
270
SCHOOL: THE STORY OF AMERICAN PUBLIC EDUCATION 5 (S. Mondale & S.B. Patton ed., 2001) as cited
Education Denied, supra note 262 at 192.
271
Id.
272
See also D. Coulby, Education in times of transition: Eastern Europe with particular reference to the
Baltic states, in EDUCATION IN TIMES OF TRANSITION: WORLD YEARBOOK OF EDUCATION 2000 17, (D.
Coulby et al. eds., 2000) as cited in Education Denied, supra note 262 at 184.
273
Id. at 184.
67
Occupant to hold a territory and take necessary steps to win its military engagement, with
regard for the restrictions upon it under the law and in keeping with the principles of
protection of civilians and other protected persons, but it as will be explained below – it
discourages the occupant from taking steps to fundamentally change the character of the
occupied territory, including through legislative means. This is in tension with a
fundamental characteristic of human rights law, which envisages the state as an entity
with abilities to transform a territory through the continual improvement of human rights
conditions. As the section on recent developments will show, the aims of IHL and IHRL
have come closer in recent years, but these fundamental characteristics still remain an
obstacle to the harmonization of the two types of law in a situation of prolonged
occupation.
Principles of Occupation Law
Since the Golan Heights is governed by the law of occupation, some overriding principles
of occupation law will be relevant to the later discussion of education under occupation.
The Law of occupation rests on four basic principles:
1.
Sovereignty does not pass from the hands of the occupied state to the hands of the
occupying force. This is primarily inferred through scholars’ emphasis on the limited
powers given to the occupant and on Art. 43 of Hague Regulations which instructs the
occupant to respect the laws in the country unless they prevent the occupant from
carrying out its duty to restore and ensure ‘public order and [civil life]’”.274 Numerous
authorities have noted this lack of a transfer of sovereignty, for example von Glahn notes
that:
“the consensus of opinions of writers on international law is that the legitimate
government of the territory retains its sovereignty but that the latter is suspended
during the period of belligerent occupation. In other words, the occupant does not
in any way acquire sovereign rights in the occupied territory but exercises a
274
Hague Regulations, supra note 208, at Art. 43.
68
temporary right of administration on a trustee basis275 until such time as the final
disposition of the occupied territory is determined.”276
2.
Occupants are not to interfere in local law, as set out in Art. 43, which states:
the authority of the legitimate power having in fact passed into the hands of the
occupant, the latter should take all the measures in his power to restore, and
ensure, as far as possible, public order and [civil life], while respecting, unless
absolutely prevented, the laws in force in the country.277
The ICRC Commentary on the Fourth Geneva Convention (in commenting on Art. 64 of
the Fourth Geneva Convention, which is an elaboration of Art. 43 of the Hague
Regulations), states that respect for the law in force is a principle that ‘dominates the
whole of occupation law’.278
This does not mean that the occupant can never alter the laws. However, the high
threshold of necessity that must be met in order to change the laws will be addressed in
the context of legislation related to education.
Also in question is to what extent an absent government can legislate for the
occupied territory (i.e. changing the “laws in force”). Von Glahn also comments on this
idea, noting that up until at least 1944, the U.S. Judge Advocate General’s School “taught
that the legitimate sovereign could not legislate for an occupied portion of his
territory.”279 However he notes that (at least by 1957) the prevailing opinion was that
“the legitimate sovereign may legislate for an occupied portion of his territory, provided
that his laws do not conflict with the powers of the occupant as outlined in conventional
international law.”280
275
Some commentators such as Dinstein have disagreed with the use of this term to characterize the
relationship between an Occupying Power and the inhabitants of the occupied territory, noting that ,“A
position of a trustee postulates trust. Incontrovertibly, no premise of trust between enemies in wartime is
warranted. An occupied territory is not entrusted in the hands of the Occupying Power. The latter wrests
control over the land from the displaced sovereign and wields power in it – as a war-related measure –
energized by the military capability to do so.” He states that it is not a matter of good will, except what
good will is mandated through legal obligation. Belligerent Occupation, supra note 244 at 36.
276
Occupation of Enemy Territory, supra, note 208.
277
Hague Regulations, supra note 208, at Art. 43.
278
Supra, note 293.
279
Occupation of Enemy Territory, supra, note 208.
280
Occupation of Enemy Territory, supra, note 208.
69
3.
The “occupant must not injure the local population, and must provide them with
care.”281
4.
The “occupant may not undertake activities for the sole benefit of its native state.
It must direct its actions toward the local population or toward military necessity; any
actions outside those two realms are prohibited.”282
These principles will be relevant in the discussion of the Occupant’s duties and
restrictions in relation to education in the Syrian Golan.
Relevant Developments in Occupation Law
Benvenisti, a prominent legal scholar on the issue of occupation law, notes that the
development of occupation law has made it more difficult for states to determine what
their obligations are – as he puts it, “…recourse to the law of occupation was a
complicated undertaking, because it was not simply a task of looking up the relevant
articles in the Hague Regulations or the Fourth Geneva Convention.”283 Therefore it is
necessary to take a look at the recent developments in the law of occupation that bear on
this discussion.
Occupation law has developed in particular in the interwar period, and has been
affected in particular by the postwar processes of decolonization including the pursuit of
self-determination and self-rule, such that, according to Eyal Benvenisti, “if the Geneva
law focused on the welfare of individuals, the modern law of occupation has to consider
also the claims of peoples as distinct subjects of international law.”284 He further notes
that the distinct phenomena of the “recalcitrant occupant” and the emergence of
“prolonged occupation(s)” such as Israel’s in the OSG and OPT have posed a double
challenge to the law of occupation: “a challenge to the principles that underlie the laws of
occupation, and a challenge to their enforceability.”285
Many of the recent developments that have occurred in the laws of occupation
were reflected in Security Council Resolution 1483 related to the invasion of Iraq.
Several already-existing principles of occupation law were importantly affirmed. These
included a) an affirmation of the neutral connotation of the doctrine – namely, that
281
Occupation of Enemy Territory, supra, note 208.
Occupation of Enemy Territory, supra, note 208.
283
Protection of Human Rights, supra note 248 at x
284
Id., at 107
285
Id.
282
70
‘occupation is a temporary measure for reestablishing order and civil life after the end of
active hostilities, benefiting also, if not primarily, the civilian population…occupation
does not amount to unlawful alien domination that entitles the local population to
struggle against it;”286 b) an affirmation that “sovereignty inheres in the people and
regime collapse does not extinguish sovereignty,”287 and c) the recognition of the
continued applicability of IHRL during conflict and occupation, simultaneously with
occupation law.288
Others reflected changes or important developments in the law, most notably, that
the role of the Occupant has changed from the “disinterested occupant”289 or “inactive
custodian”290 envisioned under the Hague Regulations to the “heavily involved
regulator”291 required in modern times. As Benvenisti notes,
Resolution 1483… calls upon the occupants to pursue an “effective
administration” of Iraq… The call to administer the occupied area “effectively”
acknowledges the several duties that the occupants must perform to protect the
occupied population. It precludes the occupant from hiding behind the limits
imposed on its powers as a pretext for inaction.292
286
Id., discussing UN Security Council Resolution 1483
(“thus the Resolution implicitly confirms the demise of the doctrine of debellatio, which would have
passed sovereign title to the occupant in case of total defeat and disintegration of the governing regime”,
see Protection of Human Rights, supra note 248 at xi – Also see Michael N. Schmitt, Debellatio, MAX
PLANCK ENCY. PUB. INT’L L. (2009), which “examines the concept of debellatio in international law,
including the issue of whether it survives in contemporary law” (according to its abstract).
288
The wording recognizes “in principle [of] the continued applicability of international human rights law
in occupied territories in tandem with the law of occupation. Human rights law may thus complement the
law of occupation on specific matters.” Protection of Human Rights, supra note 248 at xi
289
Id.
290
Id.
291
Id.
287
292
Id. Benvenisti’s opinion here (of the opinion of the Security Council) seems in
consonance with the approach taken by criminal tribunals in establishing culpability or
criminal responsibility of states in commenting on states’ tendency to attempt to
circumvent their legal obligations by using legalistic pretexts. For example, Cohen cites
the Nuremburg Tribunal who, in their discussion of the notion of debellatio, says
“However, calling occupation by the name of debellatio (premature annexation) will not
excuse the occupant from international obligations.”(Judgment of the Nuremberg
Tribunal, 30 Sept. 1946, Proceedings in the Trial of the Major War Criminals Before the
International Military Tribunal, as cited in E. Cohen at p. 30); Protection of Human Rights,
supra note 248 at 107; it further seems consonant with the approaches taken by other
criminal tribunals such as the ICTY (International Criminal Tribunal for Yugoslavia) and
the Ethiopian-Eritrean Claims Commission, when they stated the following: in its Tadic
case in 1999, the Appeals Chamber of the ICTY focused on “protected persons” in the
hands of powers to whom they owe no allegiance,” and described the ‘necessary
71
These recent changes in occupation law, particularly in the increased emphasis on the
Occupant as an active custodian of the occupied population, demonstrate that a new
approach to the simultaneous applicability of IHL and IHRL is needed and suggest that a
new approach would involve more direct action by the Occupant for the benefit of the
local population.
Education under International Humanitarian Law
The justification for the protection of children under the laws of armed conflict is
summed up well in Pictet’s authoritative official commentary of the Fourth Geneva
Convention:
The indescribable tragedy which the Second World War brought into the lives of
millions of children forms one of the most distressing chapters in the history of
the conflict and one which arouses the greatest pity. Children were the innocent
victims of events which afflicted them all the more cruelly because they were
young and weak; they suffered hardships in violation of one of the most sacred of
human laws—the law that children must be protected, since they represent
humanity’s future.293
implications of the evolution of the law from a tool that defined armies’ obligations
toward each other into ‘international humanitarian law’ that aimed at securing the wellbeing of individual civilians”—(Protection of Human Rights, supra note 248 at viii) stated
“Article 4 of Geneva Convention IV, if interpreted in the light of its object and purpose,
is directed to the protection of civilians to the maximum extent possible. It therefore does
not make its applicability dependent on formal bonds and purely legal relations. Its
primary purpose is to ensure the safeguards afforded by the Convention to those civilians
who do not enjoy the diplomatic protection, and correlatively are not subject to the
allegiance and control, of the State in whose hands they may find themselves. In granting
its protection, Article 4 intends to look to the substance of relations, not to their legal
characterization as such.” Prosecutor v Tadic, Case No. IT-94-1-T, Judgment, 580 (May 7, 1997)
Partial Award, Central Front, Ethiopia’s Claim No. 2, April 28, 2004, paras 28, 29 (available at
http://www.pca-cpa.org/ENGLISH/RPC/EECC/ET%20Award.pdf)
as cited in Protection of Human Rights, supra note 248 at vii-viii). And the Eritrea-Ethiopia Claims
Commission “rejected the link between the disputed status of certain territories and the protection of
individuals present in those territories” (Protection of Human Rights, supra note 248 at viii) when it said,
‘The alternative could deny vulnerable persons in disputed areas the important protections provided by
international humanitarian law. These protections should not be cast into doubt because the belligerents
dispute the status of the territory.” In Partial Award, Central Front, Ethiopia’s Claim No. 2, April 28, 2004,
paragraph 28 (http://www.pca-cpa.org/ENGLISH/RPC/EECC/ET%20Award.pdf) as cited in Protection of
Human Rights, supra note 248 at viii at footnote 2.
293
IV JEAN PICTET, GENEVA CONVENTION 1949, OFFICIAL COMMENTARY (1952).
72
Children represent humanity’s future. Educating children allows one generation
to pass its knowledge on to another, and make one of the only impacts it can on
humanity’s future. Children are specially protected under IHL, and according to the first
additional protocol to the Fourth Geneva Convention, “shall be the object of special
respect and shall be protected against any form of indecent assault. The Parties to the
conflict shall provide them with the care and aid they require, whether because of their
age or for any other reason.”294 Due to its special protection of children during times of
war, educational institutions, as institutions devoted to children, are protected places
requiring special attention during warfare generally, as well as by the Occupant in a
situation of belligerent occupation.
Educational institutions are generally considered institutions of a civilian
character. Distinguishing between civilian and military objects is a requirement that is at
the heart of humanitarian law. Known as the principle of distinction, it is one of the most
important (and inviolable) principles of IHL. At its most essential it requires warring
parties to distinguish between civilian and military targets to minimize harm to civilians
during warfare. The First Optional Protocol to the Fourth Geneva Convention states,
“Civilian objects are all objects which are not military objectives…”295 These, with few
exceptions, include educational institutions.
According to the Hague Regulations – which form part of customary law –
educational institutions are among those which should be protected and treated as private
property during conflict:
The property of municipalities, that of institutions dedicated to religion, charity
and education, the arts and sciences, even when State property, shall be treated as
private property. All seizure of, destruction or willful damage done to institutions
of this character, historic monuments, works of art and science, is forbidden, and
should be made the subject of legal proceedings.296
It is surprising however that international humanitarian law is rarely invoked
when discussing states’ obligations to ensure education in conflict generally or in
294
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts (Protocol I) (1977) 1125 UNTS 3, entered into force on 7
December 1978.]
295
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed conflicts (Protocol I) 8 June 1977, entry into force 7 December 1978.
http://www.icrc.org/ihlnsf/full/470?opendocument. Article 52(1).
296
The Hague Regulations, supra note 208, at Art. 56
73
situations of occupation.297 This is in spite of the fact that education is protected under
specific situations of crisis and armed conflict, in conflicts of both an international and
non-international character, as well as under the laws of belligerent occupation. This has
been the case since at least 1957, when von Glahn wrote:
The accepted rules of international law are unfortunately silent on [the extent to
which an Occupant could interfere legitimately with the educational system of a
territory under his control] and while a very few writers on the law of nations
have briefly commented on education under belligerent occupation, little has
actually been contributed toward the solution of this very real and important
problem in our age of ideological conflicts.298
Several aspects of education are protected under International Humanitarian Law.
These include the proper functioning of educational institutions, access to education for
internees,299 and access to education that respects the moral and religious wishes of
parents. As an international armed conflict and a situation of occupation, the most
notable provision related to the right to education under International Humanitarian Law
– Article 50 of the Fourth Geneva Convention – states:
The Occupying Power shall, with the cooperation of the national and local
authorities, facilitate the proper working of all institutions devoted to the care and
education of children... Should the local institutions be inadequate for the
purpose, the Occupying Power shall make arrangements for the maintenance and
education, if possible by persons of their own nationality, language and religion,
of children who are orphaned or separated from their parents as a result of the war
and who cannot be adequately cared for by a near relative or friend.300
These protections cannot be derogated from due to a state annexing the territory
that was being occupied. According to the Fourth Geneva Convention,
Protected persons who are in occupied territory shall not be deprived, in any case
or in any manner whatsoever, of the benefits of the present Convention by any
change introduced, as the result of the occupation of a territory, into the
institutions or government of the said territory, nor by any agreement concluded
between the authorities of the occupied territories and the Occupying Power, nor
297
Through the 1990’s, humanitarian law was barely discussed even in relation to the most basic forms of
education. See Sobhi Tawil, International Humanitarian Law and Basic Education, 839 INT’L REV. RED
CROSS 4 (2000).
298
Von Glahn, see note 28 in Right to Education, supra note 222, at 327.
299
“All possible facilities shall be granted to internees to continue their studies or to take up new subjects.
The education of children and young people shall be ensured; they shall be allowed to attend schools either
within the place of internment or outside." Geneva Convention IV, Article 94
300
Geneva Convention IV, Article 50
74
by any annexation by the latter of the whole or part of the occupied territory.301
The Fourth Geneva Convention also provides specifically for the education of children
under the age of 15 who have been separated from their families:
The Parties to the conflict shall take the necessary measures to ensure that
children under fifteen, who are orphaned or are separated from their families as a
result of the war, are not left to their own resources, and that their maintenance,
the exercise of their religion and their education are facilitated in all
circumstances. Their education shall, as far as possible, be entrusted to persons of
a similar cultural tradition.302
This emphasis on maintaining a child’s original identity and heritage, as indicated by the
above provision, occurs repeatedly in IHL articles concerning children. Although many
of those are not directly applicable to the context in the OSG related to education, they
shed further light on IHL’s special protection of the identity of children in general and
respect for the wishes of their parents related to their cultural, national, religious and
moral traditions. For example, during non-international armed conflicts: “Children shall
be provided with the care and aid they require, and in particular: (a) they shall receive an
education, including religious and moral education, in keeping with the wishes of their
parents, or in the absence of parents, of those responsible for their care.”303
And in cases of necessary evacuation of children, the Fourth Geneva
Convention stipulates: “Whenever an evacuation occurs pursuant to paragraph 1, each
child's education, including his religious and moral education as his parents desire, shall
be provided while he is away with the greatest possible continuity.”304
Other articles refer to states’ obligations to ensure that children are provided
with clear identifying information, including information about their family heritage,
301
Geneva Convention IV, Article 47
Geneva Convention IV, Article 24
303
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, Section II: Humane Treatment,
Article 4, paragraph 3(a). These three articles are as cited in the Report on the strategic parallel session on
Education in Situations of Emergency and Crisis at the World Education Forum, International Committee
of the Red Cross, 2000.
304
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed conflicts (Protocol I) 8 June 1977, entry into force 7 December 1978.
http://www.icrc.org/ihlnsf/full/470?opendocument. Article 78 (2).
302
75
nationality, religion, and language spoken by their family.305 These provisions indicate
IHL’s emphasis on maintaining the continuity of a population’s identity during conflict
and suggest the importance in international humanitarian law of respecting children’s
heritage, religion and culture, and national origins.
Responsibilities to maintain educational institutions
According to Art. 50 of the Fourth Geneva Convention, Occupants have a responsibility
to facilitate the proper working of institutions for children. Commentators for the
International Committee of the Red Cross have interpreted this broadly to mean that any
institution that is devoted to the care and education of children, whatever its status under
the country’s laws (including whether they are privately run or state-sponsored), must be
protected. Institutions of a wide variety are included in Pictet’s interpretation, including
child welfare centers, orphanages, children’s camps, day cares, and social welfare
services, among others.306 Pictet notes that these institutions take on roles of increased
importance during wartime, since many children are left without their natural protectors
and rely on these institutions during critical points in their development.
Occupants have an obligation to ensure, in cooperation of the local and national
authorities, the proper working of children’s institutions has been interpreted in both a
passive and an active sense. According to the ICRC’s Commentary, this means that not
only must an Occupant avoid interfering with the actions of local or national authorities
in respect to children’s institutions, but “also to support them actively and even
encourage them if the responsible authorities of the country fail in their duty.”307 This
includes facilitating the access to facilities, food, medical supplies, and anything else they
need to carry out their duty, and ensuring that they receive these even when resources are
inadequate. Pictet emphasizes the importance of ensuring the proper functioning of
children’s institutions by saying,
This provision assures continuity in the educational and charitable work of the
establishments referred to and is of the first importance, since it takes effect at a
305
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed conflicts (Protocol I) 8 June 1977, entry into force 7 December 1978.
http://www.icrc.org/ihlnsf/full/470?opendocument. Article 78 (3).
306
Pictet, Geneva Convention 1949, Official Commentary, Vol. IV, at p. 286.
307
Pictet, Geneva Convention 1949, Official Commentary, Vol. IV, at p. 286
76
point in children’s lives when the general disorganization consequent upon war
might otherwise do irreparable harm to their physical and mental development.308
While this helps to explain what types of institutions are meant to be properly
working, the Commentary does not explain what “properly working” means in the
context of educational content or program structure.309 Further, some questions remain in
regards to what an Occupant is responsible for doing if the national and local authorities
either refuse to or are unable to cooperate.310 Can the Occupant take matters into its own
hands and act unilaterally? Or can the Occupant excuse itself from its obligations?
These vague areas leave room for other, more specific rules to weigh in where
relevant. This will be discussed further in the section related to the convergence of IHL
and IHRL on education.
Powers and Restrictions to form separate schools and to interfere with educational
content
State practice is one way to determine how states have previously interpreted their
obligations in relation to IHL. Occupants in the past have seized upon the potential of
educational institutions as a way to radically transform the “enemy’s” worldview. While
an occupant does have some latitude to interfere with the educational program in a
territory it occupies, primarily those areas are limited to matters of military security and
necessity. Yet as has been established, state practice demonstrates that Occupants
typically wield more influence than they are entitled to under international humanitarian
law in relation to interfering with educational content in territories under their control.
According to prominent IHL commentator von Glahn:
[I]f it is true that lawful interference with the educational program and system of
an occupied enemy territory exists only over a limited range of activities primarily
connected with military security and necessity, then there would appear to exist a
distinct conflict between the theoretical and legal rights of an occupant in this
field and the far-reaching remolding of education envisaged by those who would
re-educate the youth of the enemy.311
308
Pictet, Geneva Convention 1949, Official Commentary, Vol. IV, at p. 287.
Right to Education, supra note 222, at 304-328
310
Id.
311
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 67.
309
77
The actual practice of states as belligerents differs strikingly from what is
permitted and prohibited in theory according to the texts of humanitarian law and what
von Glahn describes as the “rather tolerant attitude” of commentators on the subject of
interference in education. For example:
In almost every single major belligerent occupation in recent history, the
occupying power has quickly taken steps far beyond a mere supervision of native
schools and institutions of higher learning;312 in many instances far-reaching
changes have been effected while in others a temporary or lasting elimination of
large portions of an educational system was perpetrated by a military occupant313
There are many examples of widespread, detailed interference with educational
systems, such as when Germany occupied Belgium during WWI and in addition to
devoting resources to prohibiting anti-German instruction in schools, forbade the singing
of patriotic Belgian national songs and the conduct of patriotic exercises.314 Von Glahn
in noting one such example notes the ambiguities of what is allowed in terms of
regulating interference with content of education under occupation: “Such detailed
regulation of educational institutions exceeds by a wide margin the limitations agreed
upon by writers of international law; yet, in the acknowledged absence of a binding set of
rules on the subject of education under occupation, interference beyond military necessity
appears to be customary rather than exceptional.”315
The interference with educational content is at times due to Occupants’ attempts
to remove hate-filled content or other content that could potentially politicize or incite
violence among the occupied population. However it has also provided a tempting
opportunity for an Occupant to wield its influence to attempt to alter the population of the
enemy state’s beliefs. During WWII, a large number of American writers advocated for
educational reform (of teachers as well as curricula) as the only way to reform the
attitudes of the people of aggressor nations to a less “war-minded and intolerant
312
EDGAR LOENING, L’ADMINISTRATION DUE GOUVERNMENT-GENERAL DE L’ALSACE DURANT LA GUERRE
DE 1870-1871 117-119.
313
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 64.
314
Willem Bisschop, German War Legislation in the Occupied Territory of Belgium, 4 TGS 110, 131–133
(1919).
315
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 65.
78
attitude”.316 He claims that the writers called for “the youth of totalitarian countries
should be “educated away” from the doctrines of fascism…. and that they should be
taught in such a way as to stimulate the growth and development of democratic ideas.”317
Historical narratives however, as well as ideologies, are often subjective, largely
dependent on who has the power to approve the narrative and therefore to determine
whether or not actions – particularly actions involving political violence – are hateful or
nationalistic. One example of this distinction is highlighted by Noam Chomsky’s
discussion of whether to call certain armed groups “freedom fighters” or “terrorists,”
depending on whose perspective is privileged in discourses of political violence.318 This
demonstrates the tension between a nationalistic narrative that might be promoted by an
occupant, vs. a totally opposite nationalistic narrative that might be promoted by an
occupied population as part of their history.
Some educational content can be prohibited by the Occupant: “There can be little
doubt that the occupying power may prevent any and all teaching which serves to
provoke hostility toward the occupant’s forces, disrespect to the latter and to their
commands, or passive resistance to the lawful orders given to the civilian population.”319
Such lawful interference is that which is directed toward purging content that
directly targets the occupant and its forces and/or administration, and as such is limited in
scope.
If existing international rules and the precepts laid down by writers in
international law were to be applied in full, little could be done in the way of reeducation beyond a pattern comprising a very general supervision of education
316
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 62. Von Glahn cites a number of articles on
the topic, including Claude Pepper, The Liberated Nations and the New Order, 6 FREE WORLD 111 (1943);
Gilbert Murray, The Task of Re-Educating Germany, NEW YORK TIMES MAGAZINE, May. 16, 1943;
although he also cites opposing (or “doubtful”) perspectives contained in the following articles: Julian
Huxley, German Education and Re-Education, 25 NEW STATESMEN AND NATION 103–104 (1943) and
Stephen Corey, Should We Take Over Their Schools?, 58 SCHOOL AND SOC. 321–323 (1943) as cited in
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 62 (footnote 71).
317
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 62.
318
The question has been posed in various incarnations throughout history, but gained traction with
GERALD SEYMOUR, HARY’S GAME (1975), and has ignited the comparison in discussions on how to define
terrorism by Noam Chomsky and others.
319
T. LAWRENCE, PRINCIPLES OF INTERNATIONAL LAW (D.C. Heath & Co. 7th) (1923) as cited in Gerhard
von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of Belligerent
Occupation, 1957, University of Minnesota at p. 63 (footnote 72).
79
and the elimination of definite methods and ideas aimed specifically against the
occupant and his administrative authorities.320
Short of the two types of interference that are stated, namely removing speech that
would lead to incitement against the occupant and/or its administration, and the
suspension of discussions of political matters, according to von Glahn, “the occupant
does not appear to possess any additional rights to interfere with educational matters in
occupied enemy territory.”321 He supports his argument by citing Garner, commenting on
actions of Germany during WWI to turn the University of Ghent into a Flemish
institution, who stated:
Its courses of instruction, the language in which they were given, and the
selection of its professors were matters of no legitimate concern to the military
occupant so long as the conduct of the university and the character of its teaching
were not such as to endanger the military interests of the occupant or threaten the
public order.322
According to von Glahn, some governments in their official instructions allowed
for the suspension of discussions of political matters in schools while under occupation,
although “no binding definition of the extent of such prohibition or suspension is known
to the writer.”323 He notes that the American instructions (at least by 1957), which he
calls “semi-official”, since they were teachings from the Ann Arbor School operated by
the Judge Advocate General’s Department during WWII were the most detailed in this
regard, stating:
…schools must be permitted to continue their ordinary activity, provide that the
teachers refrain from references to politics and submit to inspection and control
by the authorities appointed. Schools may be closed temporarily if military
necessity requires, especially during the operational phase of the war. Further,
320
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 67. He notes that this could be subverted in
theory through the occupant employing “puppet” members of the native population to institute educational
reforms and curricular changes, but states that this would not relieve them from their responsibilities not to
unlawfully interfere with education under international law or protect them from any charges resulting from
unlawful conduct.
321
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 63.
322
II JAMES GARNER, INTERNATIONAL LAW AND THE WORLD WAR 77-78 (1920) as cited in Gerhard von
Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of Belligerent
Occupation, 1957, University of Minnesota at p. 63.
323
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 63.
80
schools may be closed, if the teachers engage in politics or refuse to submit to
inspection.324
Also, Art. 19 of the Bellot Rules325 discussed the prohibition on discussions of a
political nature, proposing that any teacher who violated this prohibition could be
removed from his/her position and replaced with a teacher of the same nationality as
him/her.326
Commentators have stated that the occupant does not have a right to “introduce
his own language as the official language of instruction”327 nor does he have the right to
replace teachers with teachers of the occupant’s nationality.328
All told, these interpretations indicate that an Occupant has limited latitude to
interfere with the content of educational programming in territories it occupies, and can
restrict content due to military necessity with respect to political or other matters that
might incite a population against the Occupant. However, the Occupant’s powers stop
short of allowing it to impose its own ideology, culture or language upon the local
population.
Other areas in which the Occupant might wish to interfere with educational
content are more ambiguous in the letter of the law of IHL, but are supported (as will be
discussed later) in IHRL in its requirement that education “promote understanding,
tolerance and friendship among all nations and all racial, ethnic or religious groups, and
further the activities of the United Nations for the maintenance of peace.”329 State
practice in IHL however supports Occupants’ attempting to purge what it sees as
problematic ideologies and to reeducate a population. Although, when it comes to
purging educational materials of hate-filled rhetoric or hateful ideologies, there is a risk
that Occupants’ may move beyond the latitude they are given and attempt to remove
324
JUDGE ADVOCATE GENERAL’S SCHOOL, LAW OF BELLIGERENT OCCUPATION 66-67 (1946) as cited in
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 63.
325
A. Wilson, The laws of war in occupied territory: a commentary on the Bellot Rules, 18 TRANS.
GROTIUS SOCIETY 17–39 (1933)
326
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 64.
327
S.V. Heyland, Occupatio Bellica, II WORTERBUCH 163 (1925)
328
Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of
Belligerent Occupation, 1957, University of Minnesota at p. 64.
329
G.A. Res. 2200, U.N. GAOR, 21st Sess., U.N. Doc. A/RES/2200A(XXI) (1966)
81
ideologies that threaten its worldview, or educate a population according to its ideology
beyond the necessity required by security and public order, in a manner solely benefitting
the Occupant. And as discussed previously, this could contravene a basic principle of
occupation law. This is an area that will be explored in more detail in the case of the
OSG.
Education under International Human Rights Law
Legal Instruments respecting the Right to Education
Israel has ratified many of the core multilateral human rights treaties:
• The International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD),330 ratified by Israel 2 February 1979.
• The International Covenant on Civil and Political Rights (ICCPR),331 ratified by
Israel 3 January 1992.
• The International Covenant on Economic, Social and Cultural Rights (ICESCR),332
ratified by Israel 3 January 1992.
• The Convention on the Elimination of Discrimination against Women (CEDAW),
ratified by Israel 2 November 1991.
• The Convention on the Rights of the Child (CRC),333 ratified by Israel 2 November
1991.
• The Convention Against Discrimination in Education (CADE),334 ratified by Israel
22 September 1961.
Many of these agreements contain provisions respecting the right to education.
Under the Covenant on Economic, Social and Cultural Rights, one of the foundational
human rights treaties, education is an essential human right and “an indispensable means
of realizing other human rights.”335 As such, it is guaranteed in two articles in the
Covenant on Economic, Social and Cultural Rights, Articles 13 and 14, and the right to
330
International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660
U.N.T.S. 195 (1969).
331
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1976) [hereinafter: ICCPR].
332
International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21
U.N.GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966), 993 U.N.T.S. 3 (1976) [hereinafter: ICESCR].
333
Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 (1989) [hereinafter: CRC].
334
Convention Against Discrimination in Education, 429 U.N.T.S. 93, entered into force May 22, 1962.
335
U.N. Doc. E/C.12/1999/10 on the right to education (art. 13), General Comment no. 13, at paragraph 1.
82
education is most comprehensively outlined in this treaty. Education for children is
further stipulated in the Convention on the Rights of the Child in Articles 28 and 29 and
provisions relating to aspects of the right to education exist in other international legal
agreements including all those listed above including the International Covenant on Civil
and Political Rights (1966), Article 18(4),336 and the UNESCO Convention Against
Discrimination in Education (1960), Article 5.337 Despite the importance of the right to
education and its prominence in such an array of authoritative international legal
agreements, its meaning and scope are not always clear. What is meant precisely by
education? The covenants do not provide an explicit definition of education,338 nor do
their commentaries. Some, such as UNESCO in its Recommendation concerning
Education for International Understanding, Cooperation and Peace and Education relating
to Human Rights and Fundamental Freedoms of 1974, have conceptualized education in
a wide scope, stating that implied in education is “the entire process of social life by
means of which individuals and social groups learn to develop consciously within, and
for the benefit of, the national and international communities, the whole of their personal
capacities, attitudes, aptitudes and knowledge.”339
However, education in the context of both international and regional UN legal
instruments guaranteeing the right to education adopts the narrower approach, relating to
336
ICCPR, supra note 331. It should be noted that this provision does not guarantee a right to education
generally as outlined in the other treaties, but instead guarantees the right of parents to ensure the moral
education of their children in accordance with their wishes.
337
Supra note 334, Art. 5. The right to education is also contained in the European Convention on Human
Rights, Protocol I (1954), Article 13; the African Charter on Human and Peoples’ Rights (1981), Article
17; the African Charter on the Rights and Welfare of the Child, Article 17(3); and the American
Declaration of the Rights and Duties of Man, Article 12; among other non-binding declarations such as the
Universal Declaration of Human Rights (1948), Article 26; the Declaration on the Rights of the Child
(1959), Principle 7;and the Declaration on Social Progress and Development (1969), Article 10.
338
The CADE provides the following explanation of education, but it falls fart short of being a
comprehensive definition: “For the purposes of this Convention, the term "education" refers to all types and
levels of education, and includes access to education, the standard and quality of education, and the
conditions under which it is given.” Recognizing the need for a further definition of at least basic
education, UNESCO produced the following definition of basic education (original in French) in 2007:
UNITED NATIONS EDUCATIONAL SCIENTIFIC AND CULTURAL ORGANIZATION, EXPERT CONSULTATION ON
THE OPERATIONAL DEFINITION OF BASIC EDUCATION: CONCLUSIONS 4(2009).
339
UNESCO, Recommendation concerning Education for International Understanding, Co-operation and
Peace and Education relating to Human Rights and Fundamental Freedoms of 1974, Article 1(a) as cited in
Klaus Dieter Beiter, The Protection of the Right to Education by International Law: including a systematic
analysis of Article 13 of the International Covenant on Economic, Social, and Cultural Rights, 82 INT’L.
STUD. IN HUM. RTS. 18–19 (2006) [hereinafter: Cultural Rights].
83
the institutional transmission of knowledge.340 This narrower definition refers to
“instruction imparted within a national, provincial or local education system, whether
public or private,”341 and is primarily related to instruction within educational
institutions. This distinction between narrower and wider conceptions of education was
also noted by the European Court of Human Rights when it stated: “[Education in a wider
sense refers to] the whole process whereby, in any society, adults endeavour to transmit
their beliefs, culture and other values to the young, whereas teaching or instruction
[education in a narrower sense] refers in particular to the transmission of knowledge and
to intellectual development.”342
In 2007, recognizing the need for a more comprehensive definition of basic
education, UNESCO sponsored a meeting of experts to produce a definition. In their
conclusions, the experts produced the following definition:
For the purposes of this definition, basic education covers notions such as
fundamental, elementary and primary/secondary education. It is guaranteed to
everyone without any discrimination or exclusion based notably on gender, ethnicity,
nationality or origin, social, economic or physical condition, language, religion,
political or other opinion, or belonging to a minority.
Beyond pre-school education, the duration of which can be fixed by the State, basic
education consists of at least 9 years and progressively extends to 12 years. Basic
education is free and compulsory without any discrimination or exclusion.
Equivalent basic education is offered for youth and adults who did not have the
opportunity or possibility to receive and complete basic education at the appropriate
age.
Basic education prepares the learner for further education, for an active life and
citizenship. It meets basic learning needs including learning to learn, the acquisition
of numeracy, literacies, and scientific and technological knowledge as applied to
daily life.
Basic education is directed to the full development of the human personality. It
develops the capability for comprehension and critical thinking, and it inculcates the
respect for human rights and values, notably, human dignity, solidarity, tolerance,
democratic citizenship and a sense of justice and equity.
340
M’Bow, A., “Introduction” in: Mialaret, 1979, p. 11 as cited in Cultural Rights, supra note 339 at 19.
Cultural Rights, supra note 339 at 18-19.
342
Campbell and Cosans v. United Kingdom, Judgement of 25 February 1982, Publications of the
European Court of Human Rights, Series A, Vol. 48, para. 33 as cited in Cultural Rights, supra note 339 at
19.
341
84
The State guarantees the right to basic education of good quality based on minimum
standards, applicable to all forms of education, and provided by qualified teachers, as
well as effective management along with a system of implementation and assessment.
Basic education is provided in the mother tongue, at least in its initial stages, while
respecting the requirements/needs of multilingualism.
In those States where basic education is also provided by private schools, the State
ensures that such schools respect fully the objectives and content as mentioned in the
present definition.343
This definition, while instructive, is not binding as it is based on a combination of
authoritative treaties binding on state signatories, and domestic definitions of education.
For example, the section stipulating the length of education is not based on any treaty
law.344 Therefore, while more comprehensive than what is contained in the balance of
multilateral treaties respecting the right to education, it cannot be completely relied upon
when determining states’ obligations. However, it does provide an overview of what’s
commonly recognized by practitioners as what is required of states in achieving basic
education.
While not explicitly defining education, other UN bodies and commentators have
provided characterizations of the right to education. Some describe it as a social and
cultural right, and others as a civil right. Some, such as former UN Special Rapporteur
on the right to education Katarina Tomasevski describe the right to education as an
empowerment right. This interpretation of education as an empowerment right, or a right
upon which other rights are contingent, aligns with the Supreme Court’s explanation in
landmark court case Brown v Board of Education of Topeka in which the Court stated:
“In these days, it is doubtful that any child may reasonably be expected to succeed in life
343
UNESCO, The Right to Education, Expert Consultation on the Operational Definition of Basic
Education: Conclusions, 17-18 December 2007, Original: French, Published in 2009 by the United Nations
Educational, Scientific and Cultural Organization (UNESCO), Education Sector, Division for the
Promotion of Basic Education, Section for the Promotion of Rights and Values in Education, 7 place de
Fontenoy, 75352 Paris 07 SP, France (ED-2009/WS/19) - CLD 746.9, at 4.
344
UNESCO, The Right to Education, Expert Consultation on the Operational Definition of Basic
Education: Conclusions, 17-18 December 2007, Original: French, Published in 2009 by the United Nations
Educational, Scientific and Cultural Organization (UNESCO), Education Sector, Division for the
Promotion of Basic Education, Section for the Promotion of Rights and Values in Education, 7 place de
Fontenoy, 75352 Paris 07 SP, France (ED-2009/WS/19) - CLD 746.9, at 8.
85
if he is denied the opportunity of an education.”345 While many characterizations are
debated by scholars, the right to education is typically viewed in relation to states’
obligations under the ICESCR, and consider it an economic, social and cultural right.
A related question is who is the subject of the right to education. The Universal
Declaration of Human Rights and the International Covenant on Economic, Social and
Cultural Rights describe the right as applicable to “everyone.” As Article 13, paragraph 1
of the Covenant on Economic, Social and Cultural Rights states, “the States Parties to the
present Covenant recognize the right of everyone to education.”346
Although education is guaranteed to everyone, in practice the right is primarily dealt
with as it concerns children of a specific age group. As noted by Tomasevski, while it is
stated that education must be in the best interests of children according to international
legal instruments, in reality, children do not have a say in the creation of those treaties or
their interpretation, nor (usually) in any facets of the education they receive. Rather, the
best interests of the child, and accordingly, the content and quality of the education they
receive, are determined by the state, parents, and the community.347 The role played by
parents and community members in determining what is best for their children vis a vis
their education is an important component of the right to education and will be revisited
in more detail shortly.
The right to education broadly guarantees access to quality educational institutions
and calls for respect in education for human rights and friendly relations among nations.
Article 13, paragraph 1 of the Covenant on Economic, Social and Cultural Rights states:
The States Parties to the present Covenant recognize the right of everyone to
education. They agree that education shall be directed to the full development of
the human personality and the sense of its dignity, and shall strengthen the respect
for human rights and fundamental freedoms. They further agree that education
shall enable all persons to participate effectively in a free society, promote
understanding, tolerance and friendship among all nations and all racial, ethnic or
religious groups, and further the activities of the United Nations for the
maintenance of peace.348
345
Brown vs Board of Education of Topeka, 347 U.S. 483 (1954) at 493 as cited in Cultural Rights, supra
note 339 at p. 18.
346
Covenant on Economic, Social and Cultural Rights, Article 13, paragraph 1.
347
Tomasevski, 1999a, para. 79 (UN Doc. E/CN.4/1999/49) as cited in Cultural Rights, supra note 339 at
20, footnote 8.
348
Covenant on Economic, Social and Cultural Rights, Article 13, paragraph 1.
86
Article 13, paragraph 2 (e) of the same Covenant states: “The development of a
system of schools at all levels shall be actively pursued, an adequate fellowship system
shall be established and the material conditions of teaching staff shall be continuously
improved.”349
However, other than these broad guarantees of respect, understanding, tolerance, and
friendship, it has little to say regarding the content of education. According to former UN
Special Rapporteur on the right to education Katarina Tomasevski, there are some limits,
for example, “International human rights law obliges individual states to ensure that each
child has access to education, but it also prohibits them from monopolizing education, let
alone transforming it into institutionalized indoctrination”.350 She goes on to admit that
“what happens in schools, public or private, is seldom examined through the human
rights lens.”351 The content of education is primarily dealt with in the CRC and will be
examined later in this section.
Traditionally, the task of educating children fell under the purview of parents, but
according to international legal agreements, the entity that is primarily responsible for
guaranteeing the right to education is the state. However, it is “increasingly recognized”
internationally that other entities also have responsibilities in the sphere of education. 352
Parents do have some say in the education of their children, particularly related to
religious and moral values and to the choice of which schools their children attend.
Article 13(3) of the ICESCR states:
The States Parties to the present Covenant undertake to have respect for the liberty of
parents and, when applicable, legal guardians to choose for their children schools,
other than those established by the public authorities, which conform to such
minimum educational standards as may be laid down or approved by the State and to
ensure the religious and moral education of their children in conformity with their
own convictions.353
349
Covenant on Economic, Social and Cultural Rights, Article 13, paragraph 2 (e).
Education Denied, supra note 262 at 15.
351
Id.
352
“It is, moreover, increasingly recognised that non-governmental and other sectors bear some form of
responsibility in the sphere of education. Article 7 of the World Declaration on Education for All, adopted
by the World Conference on Education for All, held at Jomtien, Thailand from 5 to 9 March 1990, states
that “[n]ew and revitalised partnerships at all levels [are] necessary . . . [including] . . . partnerships
between government and non-governmental organisations, the private sector, local communities, religious
groups, and families””, as cited in Cultural Rights, supra note 339 at p. 21.
353
ICESCR, Art. 13 (3)
350
87
And the ICCPR also contains a similar provision respecting parents’ choices regarding
education: “The States Parties to the present Covenant undertake to have respect for the
liberty of parents and, when applicable, legal guardians to ensure the religious and moral
education of their children in conformity with their own convictions.”354
Parental choice in schools is also discussed in the CADE in the context of educating
children according to parents’ wishes using separate schools. For example, under certain
circumstances,355 forming separate schools or educational systems “offering an education
which is in keeping with the wishes of the pupil's parents or legal guardians,” does not
constitute discrimination.356 This allowance for entire separate educational systems as a
means to respect the wishes of parents demonstrates the critical importance that human
rights law places on parents’ choices when it comes to the moral and religious schooling
of their children, and in maintaining continuity with children’s linguistic heritage. It
should be noted that this provision does not speak of ethnic segregation or segregation on
the sole basis of nationality.
The CADE also pays special attention to parental choice in education for national
minorities, in particular in allowing them to “carry on their own educational activities.”
In Article 5(1), States Parties agree that:
(b) It is essential to respect the liberty of parents and, where applicable, of legal
guardians, firstly to choose for their children institutions other than those
maintained by the public authorities but conforming to such minimum educational
standards as may be laid down or approved by the competent authorities and,
secondly, to ensure in a manner consistent with the procedures followed in the
State for the application of its legislation, the religious and moral education of the
children in conformity with their own convictions; and no person or group of
persons should be compelled to receive religious instruction inconsistent with his
or their conviction;
(c) It is essential to recognize the right of members of national minorities to carry
on their own educational activities, including the maintenance of schools and,
depending on the educational policy of each State, the use or the teaching of their
own language, provided however:
354
ICCPR, supra note 331 at Art. 18 (4)
The separate schools or educational systems must be established “for religious or linguistic reasons… in
keeping with the wishes of the pupil's parents or legal guardians” and does not constitute discrimination “if
participation in such systems or attendance at such institutions is optional and if the education provided
conforms to such standards as may be laid down or approved by the competent authorities, in particular for
education of the same level;” CADE, Art. 2 (b)
356
CADE, Art. 2 (b)
355
88
(i) That this right is not exercised in a manner which prevents the
members of these minorities from understanding the culture and language
of the community as a whole and from participating in its activities, or
which prejudices national sovereignty;
(ii) That the standard of education is not lower than the general standard
laid down or approved by the competent authorities; and
(iii) That attendance at such schools is optional.357
This article again emphasizes the importance in IHRL of allowing parents to choose
the religious and moral education of their children, as long as the education is optional so
as to ensure that no one is forced to receive education against his or her convictions. It
also emphasizes that any alternative education should conform with educational standards
so as to be at a similar quality as the education the student would otherwise receive. And
finally, it stresses that alternative education for national minorities should not exclude the
students from society or its activities, and should not prejudice national sovereignty.358
All of these aspects suggest the importance in IHRL of respecting the moral and religious
convictions of individuals and the wishes of their parents in education, in a manner that is
specific to the individual.
Education is most often characterized as an economic, social and cultural right due to
its placement in the ICESCR. Like other economic, social and cultural rights, it must be
progressively realized, according to Article 2, with two exceptions that will be discussed
momentarily.
Progressive realization of rights refers to Article 2 of the ICESCR, which states:
“Each State Party to the present Covenant undertakes to take steps… to the maximum of
its available resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant by all appropriate means, including particularly
the adoption of legislative measures.”359
357
CADE, Art. 5 (1) (b) (c)
According to a UNESCO-published Commentary on the CADE, “This may mean, in particular, that the
rights granted to minorities must not be interpreted as allowing minorities to isolate themselves from the
community as a whole.” YVES DAUDET & PIERRE MICHEL EISEMANN, COMMENTARY ON THE CONVENTION
AGAINST DISCRIMINATION IN EDUCATION, ADOPTED ON 14 DECEMBER 1960 BY THE GENERAL
CONFERENCE OF UNESCO 31(2005).
359
ICESCR, Art. 2
358
89
This provision has often led to the charge that the economic, social and cultural rights
contained in the ICESCR take a back seat to the civil and political rights enshrined in the
ICCPR, whose full realization must be achieved immediately.
Two areas must be achieved immediately. The non-discrimination provision must
be achieved immediately, as affirmed by the General Comment related to the right to
education.360 The second is states’ obligations to provide the most basic forms of
education immediately.361
In order to achieve non-discrimination in education, which is a non-derogable
provision even in cases of national emergency, states must understand what constitutes
discrimination. This is explained in further detail by the CADE:
For the purpose of this Convention, the term "discrimination" includes any
distinction, exclusion, limitation or preference which, being based on race, colour,
sex, language, religion, political or other opinion, national or social origin, economic
condition or birth, has the purpose or effect of nullifying or impairing equality of
treatment in education and in particular:
(a) Of depriving any person or group of persons of access to education of any type or
at any level;
(b) Of limiting any person or group of persons to education of an inferior standard;
(c) Subject to the provisions of article 2 of this Convention, of establishing or
maintaining separate educational systems or institutions for persons or groups of
persons; or
(d) Of inflicting on any person or group of persons conditions which are incompatible
with the dignity of man.362
Establishing separate educational systems does not constitute discrimination under the
treaty, as discussed previously, in specific cases related to the wishes of parents regarding
their children’s moral, religious and linguistic education. The other exceptions are for
gender-separated schools provided that the education provided is of the same quality,
with the same quality staff and similar or the same educational content,363 and for private
schools, provided that the education provided conforms with state standards, and “ if the
object of the institutions is not to secure the exclusion of any group but to provide
360
U.N. Doc. E/C.12/1999/10 on the right to education (art. 13), General Comment no. 13, at paragraph 31.
In cases in which the state is unable to implement free education for all immediately, the state must
work out a detailed plan that will take place over a reasonable number of years to provide free compulsory
education for all in territories under its jurisdiction. Article 14, ICESCR.
362
CADE, Art. 1 (1).
363
CADE, Art. 1 (a)
361
90
educational facilities in addition to those provided by the public authorities”364 and “if the
institutions are conducted in accordance with that object.”365
In order to comply with non-discrimination obligations according to the CADE,
States Parties are obligated to ensure that no differences of treatment are occurring
between nationals “except on the basis of merit or need,”366 and no restrictions or
preference “based solely on the ground that pupils belong to a particular group.”367 And
States Parties have an obligation “to give foreign nationals resident within their territory
the same access to education as that given to their own nationals.”368 It is important to
note that the obligation here refers to access to education, not to providing identical
curricula to non-nationals.
The Committee on Economic, Social and Cultural Rights (CESCR) has stated that
enforcement of the right to education has been challenging.369 This led the CESCR in a
General Comment to articulate “minimum core obligations” for each right including the
right to education that states are obliged to achieve lest they commit a violation of the
right in question.370 Of these there are “minimum essential levels” of each right which
must be achieved immediately in order to avoid depriving the Convention of its raison
d’etre, and notes that states cannot use the progressive realization clause or cite a lack of
resources to excuse itself from not fulfilling them.371 For the right to education, this
364
CADE, Art. 1 (c)
CADE, Art. 1 (c)
366
CADE, Art. 3 (c)
367
CADE, Art. 3 (d)
368
CADE, Art. 3 (e)
369
The Nature of States Parties Obligations, General Comment 3, adopted 13-14 Dec. 1990, U.N. ESCOR,
Comm. on Econ., Soc. & Cult. Rts., 5th Sess., at 86, ¶ 9, U.N. Doc. E/1991/23, annex III (1990) as cited in
Sital Kalantry et al., Enhancing Enforcement of Economic, Social and Cultural Rights Using Indicators: A
Focus on the Right to Education in the ICESCR, 32 HUM. RTS. Q. 271 (2010) [hereinafter: Enhancing
Enforcement].
370
Id.
371
General Comment 13: The Right to Education, U.N. Doc. E/C.12/1999/10/(1999), para. 9-10,
Committee on Economic, Social and Cultural Rights as cited in Right to Education, supra note 222, at 314.
The Committee does admit in paragraph 10 that there might be cases in which a State Party does not have
the resources to fulfill its minimum core obligations, it has the burden of demonstrating this: “In order for a
State Party to be able to attribute its failure to meet at least its minimum core obligations to a lack of
available resources it must demonstrate that every effort has been made to use all resources that are at its
disposition in an effort to satisfy, as a matter of priority, those minimum obligations.”
365
91
includes providing the most basic forms of education immediately.372 While some
questions remain about whether these standards are fixed minimums applicable to all
countries regardless of resource limitations, or whether they are flexible standards,373
they are still a useful and widely adopted measure of what is minimally required in order
to achieve compliance with the right to education under the ICESCR.
With respect to the right to education, the Committee stipulated the following five
minimum core obligations (as summed up by researchers Kalantry et al.):
1. to ensure the right of access to public educational institutions and programmes
on a non-discriminatory basis;
2. to ensure education conforms to the objectives set out in article 13(1) [of the
Covenant];
3. to provide [free and compulsory] primary education for all;
4. to adopt and implement a national education strategy which includes provision
for secondary, higher and fundamental education; and
5. to ensure free choice of education without interference from the State or third
parties, subject to with “minimum educational standards” (arts. 13(3) and (4)).374
Based on these minimum standards, Tomasevski developed a 4-A’s scheme, the “4-A
Right to Education Framework” that has been adopted by the CESCR375 and has been
widely adopted as a standard worldwide. The four core contents of the right to education
according to this scheme are: Availability, Accessibility, Acceptability, and
Adaptability.376
372
In cases in which the state is unable to implement free education for all immediately, the state must
work out a detailed plan that will take place over a reasonable number of years to provide free compulsory
education for all in territories under its jurisdiction. Article 14, ICESCR.
373
Enhancing Enforcement, supra note 369 at 272.
374
The Nature of States Parties Obligations, General Comment 3, adopted 13-14 Dec. 1990, U.N. ESCOR,
Comm. on Econ., Soc. & Cult. Rts., 5th Sess., at 86, ¶ 9, U.N. Doc. E/1991/23, annex III (1990) as cited in
Enhancing Enforcement, supra note 369 at 272. Kalantry points out that some scholars called for additional
minimum core obligations, such as the right to be educated in one’s native language and others. She lists
for example suggestions by Fons Coomans, who suggested that “the minimum core obligation should also
include: (1) the provision of special facilities for persons with educational deficits such as girls in rural
areas or working children; (2) the quality of education; and (3) the right to receive an education in one’s
native language.” FONS COOMANS, IN SEARCH OF THE CORE CONTENT OF THE RIGHT TO EDUCATION, IN
CORE OBLIGATIONS: BUILDING A FRAMEWORK FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS 217, 22930 (2002) as cited in Enhancing Enforcement, supra note 369 at 272-273.
375
The Right to Education, General Comment No. 13, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts.,
21st Sess., ¶ 45, U.N. Doc. E/C.12/1999/10 (1999) [hereinafter General Comment No. 13] as cited in
Enhancing Enforcement, supra note 369 at 274.
376
These were first proposed in Preliminary Report of the Special Rapporteur on the Right to Education,
Ms. Katarina Tomasevski, U.N. ESCOR, Comm’n on Hum. Rts., 55th Sess., ¶¶ 50–74,U.N. Doc.
E/CN.4/1999/49 (1999).
92
Availability refers to the government’s obligations to allow the establishment of
schools (as outlined under the ICCPR) and to ensure that free and compulsory education
is available to all children of an appropriate age for school (as outlined in the
ICESCR).377
Accessibility refers to the government’s obligations to provide access to education for
all children who meet the age requirements for compulsory education.378 For higher
levels of education that are not compulsory, and for which tuition and fees are often
required, accessibility is assessed by whether it is affordable.379
Acceptability refers to the quality of education, which can include health and safety
standards, requirements for teachers’ professional training, and other factors such as the
language of instruction.380
Adaptability refers to the schools’ ability to adapt to the best interests of the child
(according to the standards set out by the CRC).381 As Tomasevski points out, “This
change reversed the heritage of forcing children to adapt to whatever schools may have
been made available to them.”382
The Convention on the Rights of the Child contains even more expansive treatment of
the right to education in relation to the aims of education. In addition to containing a
provision respecting access to education, contained in Article 28, the CRC describes the
aims of education in Article 29. Art. 29, paragraph 1 of the Convention on the Rights of
the Child states:
1. States parties agree that the education of the child shall be directed to:
a. the development of the child’s personality, talents and mental and physical
abilities to their fullest potential;
b. the development of respect for human rights and fundamental freedoms,
and for the principles enshrined in the Charter of the United Nations;
c. the development of respect for the child’s parents, his or her own cultural
identity, language and values, for the national values of the country in
which the child is living, the country from which he or she may originate,
and for civilizations different from his or her own;
377
Education Denied, supra note 262 at 51.
Id.
379
Id.
380
Id.
381
Id., at 52.
382
Id.
378
93
d. the preparation of the child for responsible life in a free society, in the
spirit of understanding, peace, tolerance, equality of sexes, and friendship
among all peoples, ethnic, national and religious groups and persons of
indigenous origin;
e. the development of respect for the natural environment.383
The enjoyment of these rights, like the enjoyment of all fundamental human rights, is
linked to the dignity of the person.384 The provisions of this article demonstrate clearly
that the right to education as outlined in the CRC is not simply limited to providing
access to education, but is qualitative, linked to the content of the education.385
While also not explicitly defining education or calling for specific curricula, the
Committee on the Rights of the Child has often called upon states to make curricula more
relevant to children, and has set out the way forward in doing so: states should encourage
more active participation by children in schooling.386
The CRC requires States Parties to direct their actions toward the best interests of the
child. “In all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.”387 This includes through ensuring
that educational institutions are suitably staffed and take care to protect the children who
attend in terms of their physical safety and health, among other factors. The same Article
goes on to require States Parties to “ensure that the institutions, services and facilities
responsible for the care or protection of children shall conform with the standards
established by competent authorities, particularly in the areas of safety, health, in the
number and suitability of their staff, as well as competent supervision.”388
383
The Convention on the Rights of the Child, Article 29, paragraph 1.
U.N. Doc. CRC/GC/2001/1 on the Aims of Education, 17/04/2001, General Comment No. 1 of the
Committee on the Rights of the Child, 2001 at 1.
385
U.N. Doc. CRC/GC/2001/1 on the Aims of Education, 17/04/2001, General Comment No. 1 of the
Committee on the Rights of the Child, 2001 at 3.
386
E.g. CRC Committee, Concluding Observations: Costa Rica (UN Doc. UN Doc. CRC/C/94, 2000), para.
233 and Italy (UN Doc. CRC/C/15/Add.41, 1995), para. 21, and E.g. CRC Committee, Concluding
Observations: Cameroon (UN Doc. CRC/C/111, 2001) para. 380; Saudi-Arabia (UN Doc. CRC/C/103,
2001) para. 414 and the Netherlands Antilles (UN Doc. CRC/C/118, 2002), para. 576, as cited in A
COMMENTARY ON THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 27 (Mieke Verheyde
et al. ed., ) (2006).
387
CRC, Article 3 (1).
388
CRC, Article 3 (3).
384
94
The CRC also calls for respect for children’s heritage and national origins, and
parents’ or legal guardians’ choices. In its preamble (a non-legally binding statement at
the beginning of the Convention that draws attention to the Convention’s overall object
and purpose, priorities and its influences), the Convention takes account of “the
importance of the traditions and cultural values of each people for the protection and
harmonious development of the child.”389 In Article 3, the Convention calls on States
Parties to respect the rights of children’s parents, requiring that they:
undertake to ensure the child such protection and care as is necessary for his or
her well-being, taking into account the rights and duties of his or her parents, legal
guardians, or other individuals legally responsible for him or her, and, to this end,
shall take all appropriate legislative and administrative measures.390
While not specifically mentioning education, the Convention’s wording in these
Articles appear to extend to all aspects of a child’s life in the state. Children also have
the right to acquire a nationality, and the right to “preserve his or her identity, including
nationality, name and family relations as recognized by law without unlawful
interference.”391 In cases where children are rendered stateless due to being illegally
deprived of their identity (or parts of their identity), States Parties are required to
“provide appropriate assistance and protection, with a view to re-establishing speedily his
or her identity.”392
Together, these provisions indicate that the CRC, like the ICESCR, places a strong
emphasis on maintaining children’s cultural and national identity, whether through
education or in other closely related aspects of life, such as family life and cultural
heritage.
School separation and educational content
Regarding the provision of non-discrimination, questions have been raised as to whether
separate schooling for religious or linguistic minorities constitutes discrimination under
these legal instruments. This is particularly in light of the fact that the history of the
notion of human rights is often told as a means of curbing state abuses of their
populations that was brought to the world’s attention following the abuses of
389
CRC, preambulatory clause.
CRC, Article 3 (2).
391
CRC, Art. 7(1)
392
CRC, Art 8(1)
390
95
governments of the Axis Powers (such as Nazi Germany) during World War II. Much of
the horror of World War II, according to many of these narratives, began through the
governments’ abuse of educational institutions to indoctrinate their citizens with racially
supremacist ideas that dehumanized members of religious minorities. Other states have
struggled with divisions in education on the basis of ethnicity, color, or nationality.
As discussed previously, the UNESCO Convention against Discrimination in
Education permits the separate schooling of religious minorities (and does not consider it
discriminatory treatment), if it is optional, and in accordance with the wishes of their
parents. The wording of the article is:
When permitted in a State, the following situations shall not be deemed to
constitute discrimination, within the meaning of Article I of this Convention:
… b) The establishment or maintenance, for religious or linguistic reasons, of
separate educational systems or institutions offering an education which is in
keeping with the wishes of the pupil’s parents or legal guardians, if participation
in such systems or attendance at such institutions is optional and if the education
provided conforms to such standards as may be laid down or approved by the
competent authorities, in particular for education of the same level.393
In 1978, UNESCO established the concept of a “right to be different.” Tomasevski
described this right as indicating that “all individuals and groups have the right to be
different, to consider themselves as different and to be regarded as such.”394 Indeed,
many see the preservation of minorities’ heritage as a key component of their human
rights more broadly, including their rights to freedom of expression, freedom of thought,
conscience, and religion, and human dignity more generally. In fact, the ICCPR
guarantees minority protection in Article 27, which states: “In those States in which
ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall
not be denied the right, in community with the other members of their group, to enjoy
their own culture, to profess and practise their own religion, or to use their own
language.”395 And yet, there is a fine line between heritage preservation and celebration
393
United Nations Educational, Scientific and Cultural Organization, Convention against Discrimination in
Education, Adopted by the General Conference at its eleventh session, Paris, 14 December, 1960, entered
into force 22 May 1962 at Article 2(b)
394
Education Denied, supra note 262 at 143.
395
ICCPR, Art. 27
96
or practice of culture, and segregation of the group itself – and according to human rights
law, whether the distinction is based on religion, language, or other factors.
Historically, differences have been accommodated through segregation. The
boundaries have followed internationally prohibited grounds of discrimination….
Communities are educating their children within the boundaries of belonging defined
by religion, ethnicity, or language. The model of all-encompassing public education
aims to overcome such boundaries and the underlying division of children into ours
and theirs. Although that model is embodied in the spirit and wording of international
human rights law, it does not guide education strategies.396
These boundaries of permissible segregation that do not constitute discrimination are
inclusive of religion, but not race. Religious schools have had a long history. “Different
from race, religion has always constituted a boundary of belonging, throughout the
history of education. Religious schools are older than secular schools. It is likely that
more children attend religious than secular schools today.”397
Further, as mentioned previously, what constitutes acceptable segregation in
schooling is bounded by important requirements, including that parents have a choice as
to whether their children will attend a segregated school, the quality of education does
not suffer, and that students are not excluded from the linguistic and cultural life of the
society in which they live.
When allowing for separate educational institutions for religious education, there is
no distinction made in human rights law for whether these institutions need be public or
private.
According to former UN Special Rapporteur on the right to education Katarina
Tomasevski, “Questions about what children are taught are asked much too rarely, and
abuses of education are detected retrospectively, if at all…The assumption that any
education is better than none is as unfounded as it is prevalent.”398
Many countries have struggled with internal debates over the content of educational
curricula, particularly as it relates to sensitive issues such as the relations between
minorities and varying versions of history, especially in relation to conflict. For example,
in Bosnia-Herzegovina, separate schools with separate curricula were instituted on the
396
Education Denied, supra note 262 at 143.
Id.
398
Education Denied, supra note 262 at 15
397
97
basis of religious and other identities for students, a move which was criticized since it
arguably avoided the difficult task of educating students democratically. One such critic
alleged that:
Education is often misused by providing students with different interpretations of the
same facts. For example, curricula and textbooks may present the start of the war as
aggression and occupation, or a fight for liberation and national emancipation. Was it
genocide and ethnic cleansing of some parts of the territory, or it was it selfdefense?399
Another example of the manipulation of educational content to promote particular
political ideologies related to identity is accomplished by excluding key parts of
minorities’ history from the curriculum. For example, in Bosnia-Herzegovina, “In
municipalities where the Bosniak population is the majority, school leaders exclude
attributes of the Croat nation and Croat culture from the school curriculum. Some Croat
teachers and students refuse to attend schools with the Bosniak majority, and would
rather conduct class under tents, using curricula from neighboring Croatia.”400
Although exclusions of content, and the suggestion of the resulting impression that a
minority group is not important, or has not contributed to the nation, is not the only
method states have used historically to manipulate identity politics in schools. The
“over-emphasis” of a particular group’s ethnic or cultural background can itself be a
problem. “By over-emphasizing someone's ethnic, linguistic or religious preferences, one
often forgets other characteristics of an individual, such as gender, social, generational,
professional, intellectual, and many others. Educational practice fenced in by a
nationalistic-political frame can not only cripple all other dimensions of a personality but
also its developmental potential.”401
This is the same problem that is often identified as a critique of cultural relativism, in
that it places an emphasis on culture above all other factors and variables. A group may
be described as so culturally unique that it is reduced to stereotypical depictions, or
399
Adila Pasalic-Kreso, Education in Bosnia and Herzegovina: Minority Inclusion and Majority Rules The
system of education in BiH as a paradigm of political violence on education, 2 CURRENT ISSUES IN
COMPARATIVE EDUCATION 7 (2002). Pasalic-Kreso also states, “Furthermore, this presents political abuse
of education at the national level that skillfully avoids each attempt toward sincere democratization and
respect for cultural differences in the education system” at 6.
400
Id., at 7.
401
Id., at 12.
98
depictions that overly focus on the “traditional,” overshadowing the group’s modern,
integrated context.
Education must, through its provision institutionally and through its content, meet the
standards set out in the ICESCR and other human rights instruments, and for example as
stated in the ICESCR, “promote understanding, tolerance and friendship among all
nations and all racial, ethnic or religious groups,” but no specific syllabi or educational
programs are required. In fact, a corollary that may be assumed is that educational
content will differ between different societies.402
There are certain key places in a curriculum in which “abuses” or attempts at state
indoctrination have occurred in the past, such as within history or civics curricula, mostly
in the contexts of situations of armed conflict. It is important to note that not all of these
problematic educational content areas can occur in subjects such as history or social
studies where they might be expected. Some of these attempts occur in surprising places,
such as mathematics curricula. For example, “In Hitler’s Germany, a mathematics
textbook nudged learners to calculate the financial savings that would ensue from
eliminating mentally ill people. ‘The construction of a lunatic asylum costs 6 million
DM. How many houses at 15,000 DM each could have been built for that amount?’”403
And in the United States, mathematics were also used to achieve political propaganda
objectives: “One maths book printed in the US during the USSR’s Afghanistan war for
use amongst Afghani refugees offered the following mathematical problem: ‘If you have
two dead Communists, and kill three more, how many dead Communists do you
have?’”404
Education has also played a role in the encouragement of war and the incitement of
violence. As Tomasevski noted, “Throughout history, education has been particularly
effective in the militarization of boys. Participation in warfare has been part of
traditional initiation rituals through which boys become men. Glorification of war
402
J. Lonbay, Implementing the right to education in England, in Economic, Social and Cultural Rights:
Progress and Achievements 163–183 (1992).
403
T. McGirk, Afghan warrior joins the Great Game, Independent, Sep. 30, 1993, as cited in Education
Denied, supra note 262 at 17.
404
Id.
99
continues by means of history textbooks which are dotted with wars and war heroes.”405
For example, it was reported that education (at the urging of the state) played a role in the
conditioning of the population to commit genocide in Rwanda, through the propagation
of so-called “scientific” theories about ethnic difference.406
While extreme, these examples demonstrate the importance of holistically
examining educational content across a curriculum, and of the importance of paying
particular attention to portrayals of national minorities, and perceived social ills. They
also highlight how important educational curricula during a conflict can be, particularly
as it relates to ethnic minorities, and underscore why authorities in situations of conflict
may be suspicious of content which appears to be related to potentially sensitive subjects
that may bear on national security such as political content, or content which is
nationalistic, related to identity, religion, or minority relations, or foreign affairs.
The abuses of state power to determine educational content produced curricular
content that undermined human dignity and ran counter to the provisions of IHRL related
to education. They are instructive in demonstrating some of what would constitute a
violation of the right to education. They also violate other articles of human rights
treaties such as the ICCPR, which while not specifically dealing with education, prohibit
the advocacy of “national, racial, or religious hatred that constitutes incitement to
discrimination, hostility or violence”407 or promotion of propaganda for war.408 And as a
whole, they undermine the cause of human dignity with which human rights law is
concerned.
Protection of Education by IHL vs. IHRL
405
“The schools took it upon themselves to develop actual theories of ethnic difference based ona number
of allegedly scientific data which were essentially morphological and historiographical. In the first case,
the two main groups can be differentiated by appearance, as the Tutsi are ‘long’ whereas the Hutu are
‘ugly’, genuine ‘Negroes.’” From Commission on Human Rights, Report on the Situation of Human Rights
in Rwanda, submitted by Mr. Rene Degni-Segui, Special Rapporteur, UN Doc. E/CN.4/1997/61 of 20
January 1997, para. 25 as cited in Education Denied, supra note 262 at19-20.
406
“The schools took it upon themselves to develop actual theories of ethnic difference based ona number
of allegedly scientific data which were essentially morphological and historiographical. In the first case,
the two main groups can be differentiated by appearance, as the Tutsi are ‘long’ whereas the Hutu are
‘ugly’, genuine ‘Negroes.’” From Commission on Human Rights, Report on the Situation of Human Rights
in Rwanda, submitted by Mr. Rene Degni-Segui, Special Rapporteur, UN Doc. E/CN.4/1997/61 of 20
January 1997, para. 25 as cited in Education Denied, supra note 262 at 19-20.
407
ICCPR, supra note 331 at Art. 20 (2)
408
Id., at Art. 20 (1)
100
In 2008, the International Committee of the Red Cross undertook a study in which they
explored the mutual compatibility of IHL and IHRL. In line with this approach, Jonathan
Horowitz outlined an approach to the right to education compatible with both IHL and
IHRL in a time of occupation. The author will adopt the approach advocated by Jonathan
Horowitz in relation to the conflicting norms and potential reconciliation of norms of the
right to education under IHL and IHRL simultaneously. Namely, it will be demonstrated
that the positive obligations required by the state under IHRL can fit into the vague
requirements of the Occupying Power. And through applying, based on an assessment of
the appropriate context, either a lex specialis or lex posterior approach as the primary
lens through which the norms can be viewed or limited, either occupation law or human
rights law can harmonized into a more definitive set of obligations agreed upon between
the two bodies of law.
Horowitz first raises a number of questions regarding which provisions of IHL or
IHRL might supersede the other. For example, as previously discussed, the right to
education is an economic, social and cultural right and as such should be achieved
progressively, including through changes to legislation. However, in occupation law, the
Fourth Geneva Convention calls for only “essential” changes to the law, and the Hague
Regulations state that a state should respect local laws “unless absolutely prevented.”
Which of these provisions is strongest in relation to changing the education system in an
occupied territory?
He then examines four positive obligations of the right to education under IHRL
and their potential compatibility with the Occupant’s requirements for education under
occupation law. These four will be explained briefly.
1. Make Primary Education Compulsory and Free for All – this provision, contained
in Article 13 of the ICESCR, is not similarly enshrined in occupation law. While
the Fourth Geneva Convention stipulates that Occupants must provide education
for children orphaned or separated from their parents, its only other obligation is
to “facilitate the proper working of institutions devoted to the care and education
of children.” Legislating for free and compulsory education for all children in a
101
context in which that did not exist therefore seems to go beyond what is required
of the Occupant.409 In this sense, there appears to be a conflict between the laws.
2. Ensure the Physical Operation of Institutions Devoted to Primary Education – the
requirement to ensure that educational institutions are properly functioning in
occupation law, especially as elaborated in the Commentary to the Fourth Geneva
Convention stating that Occupants must ensure this even when local or national
authorities’ resources are inadequate, seems compatible with the broad obligations
under the right to education regarding what it means for an educational institution
to be working properly.410 Human rights law however does provide stronger,
specific obligations than occupation law in terms of what is required to ensure
that educational institutions are properly functioning. State practice generally
shows that while Occupants have provided for educational institutions, they have
done so more “based on whim, generosity, and self-interest of the Occupying
Power.”411
3. Remove Discriminatory Laws that Limit Children’s Access to Primary Education
– this is a key, immediately required provision of the ICESCR enshrined in
Article 2(2),412 and has a corollary in occupation law. The Fourth Geneva
Convention in Article 27 prevents the Occupant from making detrimental
distinctions against those under their control based on factors such as “race,
religion, or political opinion.”413 While this has been respected in state practice,
Horowitz raised some further questions. For example, while the Commentary to
the Fourth Geneva Convention indicates that an Occupant should abrogate any
discriminatory laws it finds that “might place difficulties in the way of the
application of the Convention,”414 he questioned what powers the Occupant
would have in a situation in which a discriminatory law existed preventing girls
from attending school. While changing the law would seem to be compatible
with the non-discriminatory spirit of the Fourth Geneva Convention, it could be
409
Right to Education, supra note 222, at 314-5.
Id., at 315-6.
411
Id.
412
ICESCR, Art. 2(2) as cited in Right to Education, supra note 222, at 315-6.
413
Geneva Convention IV, Art. 27 as cited in id., at 317.
414
Pictet, Commentary, Geneva Convention IV, at 207 as cited in id., at 317.
410
102
impermissible on the basis of the principle that occupation law requires the
Occupant to preserve institutions’ working the way they worked prior to
occupation.415
4. Remove Hateful Materials from Education – the ICESCR requires States Parties
to provide an education that promotes “understanding, tolerance and friendship
among all nations and all racial, ethnic or religious groups,”416 implying that
hateful materials should be removed from school curricula. State practice
indicates that Occupants have done so, and commentator Von Glahn advocated
this approach as far as it is required by military necessity or satisfies the
Occupant’s requirement to ensure public order.417 However, removing hateful
materials might not always be in the interest of public order or required by
military necessity. For example, if the hateful materials are not directed toward
the Occupant, but toward some third group, it seems that removing them would
cross a line in occupation law.418 This represents a conflict with IHRL, which
would have the State Party remove any such materials that promote hatred.
Additionally, some provisions of occupation law can be fit into the spirit of human rights
obligations related to education. These include:
1. Occupant Should Act to Benefit the Welfare of the Local Population – Because
human rights law is primarily concerned with protecting citizens from state
abuses, this approach – condoned by occupation law – is consonant with
international human rights law in general.
2. Occupant Should Support Educational Institutions in Cooperation with National
and Local Authorities – working with local and national authorities is a key
provision of the laws of occupation on education, and respects the many
provisions within human rights law on the right to education which specify that
children, or children’s parents acting on their behalf, should have a choice in their
educational options. This choice is tantamount to their having a say in their
415
Right to Education, supra note 222, at 318.
ICESCR, Art.13(1).
417
Right to Education, supra note 222, at 318.
418
Id.
416
103
education, and so the occupation law provision fits well into the spirit of these
human rights law provisions.
3. Occupant Should Respect Local Norms Including Religious and Cultural Needs both IHRL and occupation law contain provisions related to providing for the
needs of the local population in a manner that is specific to their religious,
cultural, and ethnic backgrounds. This demonstrates a respect in both sets of law
for the dignity of individuals and for their family life. In occupation law, an
Occupant is required to find teachers, if it must assign them, who closely match
the student in terms of his or her religion, ethnicity, national and cultural
background.
The increasing fragmentation of international law, which has been much discussed,
requires that competing principles be harmonized into a single set of principles. The
Court in ICJ decision simply mentioned that the state is responsible for both sets of
obligations, IHL and IHRL. It relied on doctrine of lex specialis heavily to determine
through which lens the laws should be seen (as a matter of which comes first). However,
many scholars have found this approach – largely imported from domestic legal systems
which have much clearer formal hierarchies than the international legal system – to be
problematic and at times, unclear.419 Other interpretations have been posited and
international legal bodies such as the ILC have noted that which approach is taken should
be determined based upon context.420
Horowitz pointed out two main underlying assumptions that in his opinion should
be taken into consideration when deciding on the relationship between occupation law
norms related to education and IHRL norms. One is the assumptions underlying
occupation – namely, that occupation is short and temporary and the Occupant does not
have the “prerogative” to change laws, which in contrast with a State’s wide authority to
decide what education it provides its population, should be respected as a general
principle over IHRL. So in this case, he finds the lex specialis approach, which would
favor occupation law in this case, relevant.421 The second is that since occupation law
was written, international standards on the right to education are far more comprehensive
419
Right to Education, supra note 222, at 320.
ILC, see note 20 in Horowitz, at 409 as cited in Right to Education, supra note 222, at 321.
421
Id., at 322.
420
104
and up to date than anything in occupation law. It is for this reason that Horowitz
advocates flipping the lex specialis relationship, allowing IHRL to be in the lead, and he
does so by invoking the principle of law lex posterior derogat legi priori, meaning that
when two provisions deal with the same content, the more recent law takes precedence.422
He cautioned against using this principle however to suggest that all of IHRL should
supersede IHL because IHRL is more recent, since this position has and would have
virtually no support in court decisions or literature and goes against the notion that both
bodies of law co-exist during conflict.423
One final point is that without the lex specialis framework to reign in the human
rights standards, Occupants might use human rights obligations to manipulate laws in
their favor.424 Some of the several occupation law restrictions that might reign in a
human rights approach to amending legislation are the necessity of cooperating with local
and national authorities to ensure the proper working of educational facilities.425 Another
is that interference in education is only permitted in cases of necessity, i.e. if not
interfering would result in a violation of the right to education.426
Allowing more up-to-date international human rights standards to guide the
Occupant in its interpretation of IHL is not in conflict with what the drafters and
interpreters of the Fourth Geneva Convention appeared to have wanted based on
Horowitz’s reading of the drafting history and commentary. For example, Greece
specifically suggested updating a provision on education in Protocol I Additional to the
Geneva Conventions relating to the Protection of Victims of International Armed
Conflicts (Protocol I) to reflect “present-day requirements,” referring specifically to the
right to education in the ICESCR.427 And the commentary on Article 77 AP I specifically
mentions that the article develops the Fourth Geneva Convention as well as other rules of
international law, naming specifically the ICCPR and the CRC.428
In regards to the question of at what point a human rights approach for a specific
provision should take precedence over an occupation law approach, some have answered
422
Id.
Id.
424
Id. at 323.
425
Id.
426
Id.
427
Id.
428
Id., at 324.
423
105
that the change could occur when the territory during its daily life represents peace more
than war.429 However, in the case of education, stronger controls are still needed in order
to be able to monitor the Occupant’s intentions and actions and in order to more
accurately gauge the needs and wants of the local population.
One other approach that could be possible would be for the Occupant to give
effect to treaties that were in force by the prior sovereign’s ratification, but that had not
been implemented.430 This would allow the Occupant to amend laws without coming up
against the restrictions of occupation law. However, it would only allow for a limited
range of changes and would go against the spirit of occupation law, which is not to make
sweeping changes to the existing legislative structure.
The author advocates for the use of Horowitz’s approach, in which lex specialis or
lex posterior is applied in order to selectively determine which body of law is the more
appropriate lens through which to view an Occupant’s primary obligations. After
determining which is the more appropriate, IHL or IHRL, the other norms can be filled in
or injected into the more vague requirements of the other. While imperfect, this approach
nevertheless seems to bring practitioners one step closer to an agreed-upon approach for
assessing education under occupation in relation to IHL and IHRL.
Israel’s Conduct in Relation to IHL and IHRL Obligations
Now that Israel’s obligations related to education under IHL and IHRL have been
established, Israel’s violations of International Humanitarian Law and International
Human Rights Law will be presented, taking into account the complementarity of Israel’s
obligations based on the lex specialis/lex posterior framework that was discussed
previously. The violations of the various legal instruments and articles already discussed
will be explored according to four general themes related to education, within which IHL
and IHRL norms complement one another.
Legal Problems Arising from Israel’s Position
429
Droege, see Right to Education, supra note 222, at 538, and M. Sassoli & L.M. Olson, The Relationship
between International Humanitarian and Human Rights Law where it Matters: Admissible Killing and
Internment of Fighters in Non-international Armed Conflicts, 90 IRRC 599 (2008)
as cited in Right to Education, supra note 222, at 324.
430
Id., at 326.
106
Israel’s position that the Syrian Golan Heights is part of the sovereign territory of the
state of Israel, while simultaneously recognizing that this status is not intended to
prejudice a peace settlement with Syria, in which all or part of the Syrian Golan may be
returned in exchange for peace, at first glance presents some legal contradictions. Israel
appears to be recognizing the continuing state of war between Syria and itself, and even
politically conceptualizing its control over the Syrian Golan as a temporary state, and yet
is not willing to take the step of formally admitting that the Syrian Golan is an occupied
territory. Doing so would force the state to accept the legal ramifications of its conduct
(such as its violations of law, including the transfer of parts of its civilian population into
the Syrian Golan through its civilian settlements there – arguably a war crime according
to the Rome Statute of the International Criminal Court) and accept the legal obligations
that it ignores or evades in relation to its conduct with the native population.
However, one scholar offers an explanation that reconciles this apparent
contradiction in Israel’s position which provides even further support for the contention
that Israel intended to annex the Syrian Golan. Simply, annexing a territory does not in
any way prevent a sovereign from agreeing to transfer its territory to its neighbor.431 This
was pointed out explicitly by Prime Minister Begin during two of the three readings of
the Golan Heights Law,432 and statements indicating the same idea were expressed in
relation to the Basic Law which annexed Jerusalem to Israel.433
In addition to these problems, a primary reason why Israel’s position is
problematic as regards international law is not simply a matter of its practice being in
violation of the letter of legal norms, or the factual reality of its civil administration of the
Syrian Golan, nor is it solely a matter of semantics in regards to whether or not the
territory is called “annexed.” The problem is something much more fundamental, having
implications for the international legal system as a whole.
431
Maoz in Application of Israeli Law to the Golan Heights is Annexation; Maoz, Asher, Vol. 20 Brook. J.
Int'l L. (1993-1995) at 367.
432
During one reading on the Golan Heights Law, the Prime Minister stated: “Politically speaking I declare
before all of the members of government seated here, that the moment the President of Syria states that he
is prepared to engage in negotiations with Israel for a peace treaty, at that moment the negotiations for a
peace treaty with Israel shall begin, and nothing shall stand in our way." 93 D.K. 1694 (1982), as cited in
Maoz in Application of Israeli Law to the Golan Heights is Annexation; Maoz, Asher, Vol. 20 Brook. J.
Int'l L. (1993-1995) at 367.
433
Maoz in Application of Israeli Law to the Golan Heights is Annexation; Maoz, Asher, Vol. 20 Brook. J.
Int'l L. (1993-1995) at 367.
107
Whether the Israeli administration of the Syrian Golan is civil or military is not
the main problem. The primary problem is in the application of the same laws of one’s
own population to an occupied population: Israel’s extension of its own law to the Syrian
Golan fails to take into account the differing realities, state aims and legal obligations
regarding the treatment of an occupied population. This problem is essentially the crux
of this paper. The state has legitimate aims in regards to educating its own population.
Yet these aims are at times fundamentally in conflict with the aims of education as relates
to an occupied population, especially when a state is attempting to inculcate a sense of
national identity in the people. Some of the most obvious manifestations of this problem
are in terms of educational content and curricula that address national history, but the
problem goes much deeper, for example into the democratic processes of decisionmaking that the Syrian Golan residents are not able to take part in due to their status as
non-citizens. And as long as Israel continues to hold that the inhabitants are simply
rejecting Israel’s benevolence or generosity by not accepting its offer of citizenship, the
fundamental attitude of Israel as regards the population and the resulting power relations
will remain distinctly unbalanced.
Israel in many ways, by attending to its human rights obligations exclusively in
the Syrian Golan, could theoretically develop educational institutions positively in
accordance with its obligations under international law. This often is the narrative put
forth by the state in relation to its conduct in the Syrian Golan. For example, the state of
Israel focuses on its achievements in education in the Syrian Golan, such as the increased
enrollment of girls in schools, improved attendance and graduation rates among both
genders, and its development of schools by utilizing increasingly advanced technology.
However, by ignoring its obligations under international humanitarian law and focusing
exclusively on the promotion of human rights and its objectives as a state, no matter how
well it achieves these ends, Israel will still face problems due to the conflicting aims of
the two bodies of law in relation to the residents. The aims of a legitimate state sovereign
over its population and the aims of an occupying power over the enemy inhabitants of the
territory it occupies differ substantially, as has been discussed previously in this study.
And as long as the population sees itself as occupied, and Israel ignores this status and
108
the resulting consequences of this viewpoint, the human dignity of the residents will not
be respected and human rights obligations will therefore be violated in the process.
Put another way, if what is good for an Israeli citizen must necessarily be good for
a Syrian citizen, or a citizen of any other state, that would undermine some of the most
important principles that underlie the international system of states. These include the
principles of state sovereignty and of the self-determination of peoples, which are
bedrocks of the international legal system and protected by the UN Charter, in addition to
numerous other instruments guaranteeing these rights. States by definition differ in their
determinations of what benefits their citizens, and it is their right and privilege to do so,
since as sovereign nations, no legal body has authority over them. While there is happily
more overlap between the valuations of states in what constitutes “good”- for example
resulting in the abundance of multilateral international legal instruments guaranteeing
agreed-upon rights and interstate cooperation - each state as a sovereign has the right to
disagree with other states, except in regards to commission of the most heinous of crimes
(such as violations of jus cogens norms).
While Israel could begin to comply with its obligations under IHL and IHRL in
relation to education as suggested by this analysis, it is unlikely that the residents of the
Syrian Golan would enjoy their rights fully until they are no longer living under
belligerent occupation. However, without an end in sight to their prolonged occupation,
Israel’s increased compliance with its international legal obligations could vastly improve
the Syrian Golan residents’ enjoyment of the right to education.
Changes to the Legal Structure and Proper Functioning of Schools
As discussed previously, Israel’s acquisition of the Syrian Golan by force was in
contravention of the UN Charter. Israel’s subsequent military occupation was illegal
according to IHL, and its application of its laws to the OSG, or annexing the territory,
constituted a further violation of IHL that was condemned immediately by the United
Nations Security Council, General Assembly, and was not recognized by nearly all
nations of the world. And as just discussed, Israel’s prolonged occupation of the territory
continuously subjects the population to an increased risk that their human rights will be
violated.
109
As discussed, an occupant has to balance its obligations to maintain the status quo in
the territory it occupies, and to take positive steps to ensure that the population is
enjoying its human rights obligations. The tension between these two competing
principles is apparent when it comes to the issue of Israel extending its educational
curricula to the residents of the Syrian Golan and administering its schools.
In a review of the history, immediately after its capture of the Syrian Golan in 1967,
Israel’s military administration allowed the Syrian Golan residents to continue attending
educational institutions following the Syrian curriculum and educational structure.
However, the curriculum was soon replaced by an Israeli curriculum. Israel claims that
because of war with Syria, it had to use its own textbooks for education of the Syrian
Golan residents since it had no access to Syrian curricula. Local authorities within the
Syrian Golan, due to their stance of resisting Israeli authority, refused to cooperate with
Israeli military authorities. Consequently, it is difficult to determine whether the Israeli
authorities conducted themselves appropriately by replacing the curriculum. In regards to
whether Israel’s changes to educational institutions without the consent of the local
population amounted to a violation of IHL, this area of occupation law is gray.
As mentioned previously, Art. 50 of the Fourth Geneva Convention requiring an
occupant to maintain educational institutions does not state what an occupant should do if
local and national authorities refuse to cooperate in maintaining the proper working of
educational institutions. Israel chose to act unilaterally by implementing its education
system, but without the cooperation of local authorities, and given a lack of teachers,
textbooks, and legal authorities, it is difficult to say whether the Israeli authorities could
have acted differently without violating their obligation under Article 50. Under IHRL,
in particular Article 13(2) of the ICESCR, States Parties have an obligation to ensure that
schools are developed and that teaching conditions are continuously improved. By taking
an active role in the development of schools, Israel appears to have been complying with
this provision. Teacher training was a more questionable area, but since the right to
education is meant to be progressively realized, a more in depth study of Israel’s conduct
would be necessary in order to determine whether or not this article has been violated.
Art. 50 further requires that the occupant to ensure that children in the occupied
territory who are orphaned or separated from their parents are provided with an education
110
if the local authorities are inadequate for doing so. And this obligation also requires an
occupant, when making these arrangements, to provide education given by instructors of
the same nationality, language, and religion of the children, if possible. And many other
obligations in IHL demonstrate a respect for education of children that is consistent with
their parents’ nationality, religion, language, and moral values. The Israeli authorities, by
requiring that students were taught in Arabic in Arab sector schools, by Druze teachers,
may have believed that this constituted their compliance with the spirit of these IHL
protections, even though most of the children were probably not orphaned. In regards to
nationality, because Israel began to define the Druze as a nation, a creative, rather than a
strict, interpretation of “nationality” could have allowed them to make the argument that
they were complying with the emphasis on nationality.
Due to these ambiguities and considerations, it is not clear whether Israel’s original
choice to impose its curricula on the residents of the Syrian Golan was in contravention
of IHL. This is particularly true since in the first few years of occupation, the authorities
may not have had time (or enough information or cooperation from residents) to
understand the nuances of their situation vis a vis their identity, religion, and educational
preferences. Israel’s obligations related to nationality should have been more clear from
the beginning, and will be discussed further in a later section.
Similarly, Israel’s extension of its laws related to compulsory education over the
Syrian Golan, at face value appears to contradict its obligation under Art. 53 of the Hague
Regulations to keep local laws in force unless “absolutely prevented.” Yet, without
access to Syrian lawyers, law books, or the authorities governing the provision of
education, again, it could be argued that it was necessary for Israel to do so in order to
ensure that the residents were guaranteed access to education under the law. However,
the wording “absolutely prevented” suggests a very high standard of compliance, casting
doubt on whether it was truly necessary for Israel to impose its school system on
residents and cease respecting Syrian educational laws. Therefore, it is again difficult to
say whether Israel committed a violation early on by applying its own laws to the Syrian
Golan.
Later on, in particular when more of the local population began to cooperate with
Israeli authorities, and when Syrian residents began publicly voicing their opinions on the
111
imposition of the Israeli educational system on residents, Israeli authorities have more to
prove as to why they did not respond to the residents’ wishes. This will be discussed
further in relation to educational content.
Access to Education
In order to comply with its obligations under the right to education in IHRL,
education must be available, accessible, acceptable, and adaptable. The first two will be
discussed in relation to access to education. In the Syrian Golan, Israel took steps to
ensure that all students of the appropriate ages were provided with some form of
compulsory education. However, the education was not always free, since residents had
to pay for educational costs out of pocket in many cases. This raises questions about
whether education was truly “accessible” to all residents.
Israel claimed its actions benefitted the local population. Indeed, Israel presents
statistics demonstrating that reading levels, girls’ participation in education, and other
indicators have risen positively as a result of Israel’s actions related to education in the
Syrian Golan. These improvements support the notion that Israel complied with its
requirements for access to education under the IHRL right to education.
Choice of Schools
On the whole, at least at primary and secondary levels, Israel appears to have
provided access to education. However, whether or not this access was provided on a
non-discriminatory basis is in question. As will be discussed in more detail, students only
had access to some schools – for example, a non-Jewish, Arab student could not attend a
Jewish school even if the education provided there was of a higher quality or in keeping
with the wishes of the student’s parents. This could indicate that the access was
discriminatory on prohibited grounds, and would call into question Israel’s compliance
with access to education under the ICESCR and other IHRL instruments to which it is
party.
Choice of schools is an important component of the right to education that is not
discriminatory, as outlined in the CADE, Art. 5(1) and numerous other instruments to
which Israel is party, including the ICCPR and ICESCR. Parents have a right to choose
the educational institutions for their children, or to create new schools if the available
choices are not acceptable (subject to limitations such as quality and local law).
112
However, in the Syrian Golan, students did not have these choices even when they or
their parents objected to the educational institutions’ quality or content. And according to
the right to education in the ICESCR, non-discrimination must be achieved immediately,
and is non-derogable.
School choice is particularly important when it comes to the rights that minorities’
have to ensure their religious, linguistic, and moral traditions are respected and
maintained. For example, according to the CADE, Art. 2(b) and Art. 5(1), creating
separate schools for minorities for linguistic or religious reasons does not constitute
discriminatory treatment by a state party, but only if the institutions are optional and of a
quality similar to or the same as other schools in the state. In the case of the residents of
the Syrian Golan, not only did many of the parents object to the educational institutions,
they were not allowed other educational options, and met great resistance from Israeli
authorities when they attempted to create alternative educational arrangements. Further,
the way that Hebrew is taught in comparison with Arabic, indicates a strong aversion by
authorities to exploring the rich heritage of the Arabic language. This may result in the
erosion of Arabic language abilities and knowledge among an Arab population, and
would defeat some of the objectives of creating separate, Arabic-language schools for the
Arab minority as a means to respect the maintenance of their linguistic traditions.
In sum, these circumstances suggest that the non-discrimination requirement, and thus
Israel’s obligations under the CADE and ICESCR mentioned above, were violated.
Respect for parents’ wishes and the best interests of the child fall under the “adaptability”
criteria, and in the above case, as well as in terms of content, this criteria appears not to
have been respected.
Educational Content/Curricula
Because teachers were often poorly trained, the threshold for “acceptable”
education may not have been met.
Another aspect in which parents’ wishes are important is in terms of the content
of education, which fall under both the “acceptability” and “adaptability” criteria for
assessing the core components of the right to education in IHRL. Respect for parents’
wishes related to their moral or religious convictions in particular is guaranteed in Art.
18(4) of the ICCPR, ICESCR Art. 13(3), and the two CADE articles already discussed.
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Additionally, IHL – particularly the Geneva Conventions and their optional protocolsplaces a strong emphasis on the respect for children’s nationality, language, and religion.
In the Syrian Golan, many residents strongly disagree with the Druze heritage
curriculum to which they have been subject. While Druze schools teach essentially
secular tenets, they take great care to portray the Druze religious sect as an ethnic group
or nation, and to emphasize aspects of the history of members of the religious sect that
are calculated to serve Israel’s aims of nation-building among its citizens. Coupled with a
lack of school choice, what many students and parents feel is objectionable content is
forced upon residents against their religious and moral convictions. This is in clear
contravention of Israel’s obligations under the abovementioned articles.
Also in regards to content, the state is under an obligation to avoid inciting
religious hatred, and to provide an education that is consistent with the United Nations’
aims of tolerance and friendship among peoples and nations. This is an essential
component of the right to education, as outlined in the CRC, ICESCR, and other
instruments. To this end, it is questionable how the portions of the Druze heritage
curriculum that are intended to distance students from their Arab heritage, and emphasize
elements of history that serve to distance students from Muslim Arabs, are intended to
promote “friendly relations” among the residents of the Syrian Golan with Arab
populations and nations.
However, Israel in this case is balancing a situation in which authorities may fear
that– if afforded an accurate portrayal of their political and religious history – the
curriculum might incite religious hatred against the Jewish population in Israel, or incite
violence directed at the occupant’s forces. And yet, it is critical for the state to be able to
balance their permissible interference with educational content of this nature, with their
obligations to provide an education that is consistent with residents’ convictions (or to
allow them to create their own educational institutions). While restrictions on “political”
content are arguably permissible according to IHL, at least if judging by some of the
foundational rules of IHL, if not by the letter of the law, an overly broad definition of
what is political can infringe on residents’ rights as described above – in particular, as
they relate to what Israel considers sensitive information related to identity, such as
religion and ethnic heritage – can easily surpass what is permitted by IHL.
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For example, applying an educational system that – if what critics allege is true –
deliberately attempts to separate Syrian Arab Druze from their ethnic Arab identity, due
to fears that Arabs will coalesce under the umbrella of Arab nationalism and harm the
state’s security, is so broad as to constitute a violation. Re-shaping the identity of an
occupied population in order to serve nation-building interests in the occupant’s state,
particularly at the expense of respecting the national origins of the population, goes
beyond the occupant’s authorities in relation to interfering with educational content.
Consent and Welfare of Population
Above all other things, the principle of distinction is an essential principle of
humanitarian law. Residents of the Syrian Golan should under no circumstances be used
to achieve military objectives by Israel, and actions should not be for the “sole benefit” of
the occupant. And according to the CRC, the best interests of the child should be
respected. These include a child’s right to education that respects his or her family
heritage, language, and nationality.
Israel’s attempts to inculcate Israeli nationalism in the occupied population – in
pursuit of the state’s aims to achieve sovereignty over the Syrian Golan – appear to come
for the sole benefit of the occupant, at the expense of the rights of the children subject to
the education system. This is a clear violation of the CRC, and of a basic principle of
occupation law.
Conclusion
While it may not live up to the expectations of either adherents or critics of the
power of education to create either good or evil human beings, education does have an
impact on a child’s development and worldview, one that is even more pronounced in a
situation of conflict, in which two parties are at war. And many of the rights and
protections afforded children under both IHL and IHRL are directed toward preserving
and upholding the human dignity that all people possess. The residents of the Syrian
Golan have been caught in the middle of a conflict that, in the absence of military action,
has been waged in terms of their identity, and their loyalty. And the overall conclusion of
this study points to the fact that by violating residents’ rights under these two bodies of
law, Israel in some of its actions threatens their dignity.
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From a human rights and humanitarian perspective, it is critical to ensure that the
story of a people is told in a way that does not infringe on others’ rights. But it is also
critical that a people be allowed to define itself, and to pass on its own story to its
children. It is critical that children are never taught that their own identity is a threat.
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